Internal whistle-blowing systems are supposed to fight misconduct within organizations. Because it is difficult to study their efficacy in the field, scientific evidence on their performance is rare. This is problematic, because these systems bind substantial resources and might generate the erroneous impression of compliance in a company in which misconduct is prevalent. We therefore suggest a versatilely extendable experimental workhorse that allows the systematic study of internal whistle-blowing systems in the lab. As a first step, we tested the efficacy of whistle-blowing systems if internal punishment for misconduct is mild and hesitant which is usually the case in practice, as several fraud surveys confirm. Our results show that under these conditions almost nobody blew the whistle, and misconduct occurred even more frequently with than without a whistle-blowing system. The institutionalization of whistle-blowing seemed to crowd out the intrinsic motivation to act compliantly. Moreover, when a whistle-blowing system was either unavailable or not used, misconduct was highly contagious and spread quickly. Yet, when we implemented severe and ensured punishment for misconduct, whistle-blowing systems could deter wrongdoing. In such a setting, people were willing to blow the whistle and the prevalence of misconduct dropped substantially. Altogether, our results highlight the interaction between institutions and preferences and can support the design of compliance measures within organizations. For compliance managers a key takeaway is that if companies preach a zero-tolerance policy, they should practice it as well. Otherwise, they might even worsen the situation.
{"title":"Beware of Toothless Tigers: Institutionalizing Whistleblowing May Crowd Out Compliance","authors":"Sebastian Kruegel, Matthias W. Uhl","doi":"10.2139/ssrn.3685913","DOIUrl":"https://doi.org/10.2139/ssrn.3685913","url":null,"abstract":"Internal whistle-blowing systems are supposed to fight misconduct within organizations. Because it is difficult to study their efficacy in the field, scientific evidence on their performance is rare. This is problematic, because these systems bind substantial resources and might generate the erroneous impression of compliance in a company in which misconduct is prevalent. We therefore suggest a versatilely extendable experimental workhorse that allows the systematic study of internal whistle-blowing systems in the lab. As a first step, we tested the efficacy of whistle-blowing systems if internal punishment for misconduct is mild and hesitant which is usually the case in practice, as several fraud surveys confirm. Our results show that under these conditions almost nobody blew the whistle, and misconduct occurred even more frequently with than without a whistle-blowing system. The institutionalization of whistle-blowing seemed to crowd out the intrinsic motivation to act compliantly. Moreover, when a whistle-blowing system was either unavailable or not used, misconduct was highly contagious and spread quickly. Yet, when we implemented severe and ensured punishment for misconduct, whistle-blowing systems could deter wrongdoing. In such a setting, people were willing to blow the whistle and the prevalence of misconduct dropped substantially. Altogether, our results highlight the interaction between institutions and preferences and can support the design of compliance measures within organizations. For compliance managers a key takeaway is that if companies preach a zero-tolerance policy, they should practice it as well. Otherwise, they might even worsen the situation.","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133282126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is a forgotten conception of the corporation as a biological entity; a living creature; an organism. This talk will outline the articulation of this conception by philosophers such as Aristotle and Hegel for the purpose of discussing the recognition of corporations by the state. Recognition by the state, for example through incorporation, it will be shown, is continually held in a tension. Recognition facilitates a community's ability to retain a stable identity; but it can also act as arbitrary imposition, the state’s gaze forming the corporate forms it desires, so transforming social relations according to the state's own dispositions. This is the text of a talk given at the Melbourne Doctoral Forum on Legal Theory 2019 conference.
{"title":"Corporate Recognition: The Precarious Line Between Alienation and Flourishing","authors":"D. Wallace","doi":"10.2139/ssrn.3535257","DOIUrl":"https://doi.org/10.2139/ssrn.3535257","url":null,"abstract":"There is a forgotten conception of the corporation as a biological entity; a living creature; an organism. This talk will outline the articulation of this conception by philosophers such as Aristotle and Hegel for the purpose of discussing the recognition of corporations by the state. Recognition by the state, for example through incorporation, it will be shown, is continually held in a tension. Recognition facilitates a community's ability to retain a stable identity; but it can also act as arbitrary imposition, the state’s gaze forming the corporate forms it desires, so transforming social relations according to the state's own dispositions. This is the text of a talk given at the Melbourne Doctoral Forum on Legal Theory 2019 conference.","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129327142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To promote fair and sustainable capitalism and help business and labor work together to build an American economy that works for all, this paper presents a comprehensive proposal to reform the American corporate governance system by aligning the incentives of those who control large U.S. corporations with the interests of working Americans who must put their hard-earned savings in mutual funds in their 401(k) and 529 plans. The proposal would achieve this through a series of measured, coherent changes to current laws and regulations, including: requiring not just operating companies, but institutional investors, to give appropriate consideration to and make fair disclosure of their policies regarding EESG issues, emphasizing “Employees�? and not just "Environmental, Social, and Governance�? factors; giving workers more leverage by requiring all societally-important companies to have board level committees charged with ensuring fair treatment of employees, authorizing companies to use European-style works’ councils to increase employee voice, and reforming labor laws to make it easier for workers to join a union and bargain for fair wages and working conditions; reforming the corporate election system so that voting occurs on a more rational, periodic, and thoughtful basis supportive of sustainable business practices and long-term investment; improving the tax system to encourage sustainable, long-term investment and discourage speculation, with the resulting proceeds being used to revitalize and green America’s infrastructure, tackle climate change, invest in American workers’ skills, transition workers from carbon-intensive industries to jobs in the clean energy sector; and taking other measures, such as reform of corporate political spending and forced arbitration, to level the playing field for workers, consumers, and ordinary investors.
{"title":"Toward Fair and Sustainable Capitalism A Comprehensive Proposal to Help American Workers, Restore Fair Gainsharing between Employees and Shareholders, and Increase American Competitiveness by Reorienting Our Corporate Governance System toward Sustainable Long-Term Growth and Encouraging Investments","authors":"Leo E. Strine Jr.","doi":"10.2139/ssrn.3462454","DOIUrl":"https://doi.org/10.2139/ssrn.3462454","url":null,"abstract":"To promote fair and sustainable capitalism and help business and labor work together to build an American economy that works for all, this paper presents a comprehensive proposal to reform the American corporate governance system by aligning the incentives of those who control large U.S. corporations with the interests of working Americans who must put their hard-earned savings in mutual funds in their 401(k) and 529 plans. The proposal would achieve this through a series of measured, coherent changes to current laws and regulations, including: requiring not just operating companies, but institutional investors, to give appropriate consideration to and make fair disclosure of their policies regarding EESG issues, emphasizing “Employees�? and not just \"Environmental, Social, and Governance�? factors; giving workers more leverage by requiring all societally-important companies to have board level committees charged with ensuring fair treatment of employees, authorizing companies to use European-style works’ councils to increase employee voice, and reforming labor laws to make it easier for workers to join a union and bargain for fair wages and working conditions; reforming the corporate election system so that voting occurs on a more rational, periodic, and thoughtful basis supportive of sustainable business practices and long-term investment; improving the tax system to encourage sustainable, long-term investment and discourage speculation, with the resulting proceeds being used to revitalize and green America’s infrastructure, tackle climate change, invest in American workers’ skills, transition workers from carbon-intensive industries to jobs in the clean energy sector; and taking other measures, such as reform of corporate political spending and forced arbitration, to level the playing field for workers, consumers, and ordinary investors.","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126257646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-02DOI: 10.1080/1323238x.2019.1687191
D. Birchall
Corporate actions often adversely impact human rights in ways that are not easily justiciable. Such actions include the production and use of fossil fuels, contributing to climate change and its im...
{"title":"Irremediable Impacts and Unaccountable Contributors: The Possibility of a Trust Fund for Victims to Remedy Large-Scale Human Rights Impacts","authors":"D. Birchall","doi":"10.1080/1323238x.2019.1687191","DOIUrl":"https://doi.org/10.1080/1323238x.2019.1687191","url":null,"abstract":"Corporate actions often adversely impact human rights in ways that are not easily justiciable. Such actions include the production and use of fossil fuels, contributing to climate change and its im...","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116755149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast as a “platform,” could, under a certain set of parameters, lead to efficient outcomes. Next, the Article’s analysis suggests that while not every judge thinks about efficiency in decision-making, there must be some architectural or governance feature pushing in the direction of efficiency — which exists in some areas of law and not in others. This Article explains two-sided markets, or platforms, generally and applies the modular open-source platform model to judge made law. In doing so, it explores concepts that impact the efficiency of such platforms — platform governance, modularity, and fragmentation. Then, the Article applies the understanding of platforms to several areas of law that might be understood as more prone to economic analysis because the issues addressed in law tend to be more “economic,” such as torts, bankruptcy, patents, and corporations. In these areas, no combination of platform architecture and modularity has allowed for the development of more efficient legal rules as a general matter. Finally, this Article studies antitrust law as the one area of law that suggests that the efficiency of common law is possible and the causal mechanism of necessary conditions that needs to be met. Antitrust law is different than other areas of law because of a singular goal, an architectural governance based on a single federal court (the Supreme Court) with few substantive legislative changes for the past 100 years, which provides for coherent governance of the platform. The Article concludes by discussing the implications of an efficient platform design for other areas of law.
{"title":"Rethinking the Efficiency of the Common Law","authors":"D. Sokol","doi":"10.2139/ssrn.3328025","DOIUrl":"https://doi.org/10.2139/ssrn.3328025","url":null,"abstract":"This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast as a “platform,” could, under a certain set of parameters, lead to efficient outcomes. Next, the Article’s analysis suggests that while not every judge thinks about efficiency in decision-making, there must be some architectural or governance feature pushing in the direction of efficiency — which exists in some areas of law and not in others. This Article explains two-sided markets, or platforms, generally and applies the modular open-source platform model to judge made law. In doing so, it explores concepts that impact the efficiency of such platforms — platform governance, modularity, and fragmentation. Then, the Article applies the understanding of platforms to several areas of law that might be understood as more prone to economic analysis because the issues addressed in law tend to be more “economic,” such as torts, bankruptcy, patents, and corporations. In these areas, no combination of platform architecture and modularity has allowed for the development of more efficient legal rules as a general matter. Finally, this Article studies antitrust law as the one area of law that suggests that the efficiency of common law is possible and the causal mechanism of necessary conditions that needs to be met. Antitrust law is different than other areas of law because of a singular goal, an architectural governance based on a single federal court (the Supreme Court) with few substantive legislative changes for the past 100 years, which provides for coherent governance of the platform. The Article concludes by discussing the implications of an efficient platform design for other areas of law.","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128803709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
L. Bebchuk, Robert J. Jackson, Jr., J. D. Nelson, Roberto Tallarita
This Article seeks to contribute to the heated debate on the disclosure of political spending by public companies. A rulemaking petition urging SEC rules requiring such disclosure has attracted over 1.2 million comments since its submission seven years ago, but the SEC has not yet made a decision on the petition. The petition has sparked a debate among academics, members of the investor and issuer communities, current and former SEC commissioners, and members of Congress. In the course of this debate, opponents of mandatory disclosure have put forward a wide range of objections to such SEC mandates. This Article provides a comprehensive and detailed analysis of these objections, and it shows that they fail to support an opposition to transparency in this area. Among other things, we examine claims that disclosure of political spending would be counterproductive or at least unnecessary; that any beneficial provision of information would best be provided through voluntary disclosures of companies; and that the adoption of a disclosure rule by the SEC would violate the First Amendment or at least be institutionally inappropriate. We demonstrate that all of these objections do not provide, either individually or collectively, a good basis for opposing a disclosure rule. The case for keeping political spending below the radar screen of investors, we conclude, is untenable.
{"title":"The Untenable Case for Keeping Investors in the Dark","authors":"L. Bebchuk, Robert J. Jackson, Jr., J. D. Nelson, Roberto Tallarita","doi":"10.2139/SSRN.3281791","DOIUrl":"https://doi.org/10.2139/SSRN.3281791","url":null,"abstract":"This Article seeks to contribute to the heated debate on the disclosure of political spending by public companies. A rulemaking petition urging SEC rules requiring such disclosure has attracted over 1.2 million comments since its submission seven years ago, but the SEC has not yet made a decision on the petition. The petition has sparked a debate among academics, members of the investor and issuer communities, current and former SEC commissioners, and members of Congress. In the course of this debate, opponents of mandatory disclosure have put forward a wide range of objections to such SEC mandates. This Article provides a comprehensive and detailed analysis of these objections, and it shows that they fail to support an opposition to transparency in this area. \u0000 \u0000Among other things, we examine claims that disclosure of political spending would be counterproductive or at least unnecessary; that any beneficial provision of information would best be provided through voluntary disclosures of companies; and that the adoption of a disclosure rule by the SEC would violate the First Amendment or at least be institutionally inappropriate. We demonstrate that all of these objections do not provide, either individually or collectively, a good basis for opposing a disclosure rule. The case for keeping political spending below the radar screen of investors, we conclude, is untenable.","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122822324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This chapter examines whether the web of corporate criminal liability is effective from the perspective of a national jurisdiction such as the UK, specifically in relation to atrocity crimes such as crimes against humanity and war crimes. The chapter identifies blind spots in the UK's tangled legislative framework, but concludes that realism need not mean pessimism. Powerful remedies do exist, poised to be pursued.
{"title":"Catching Wars' Funders and Profiteers: The Disjointed Web of Corporate Criminal Liability in England and Wales","authors":"Russell Hopkins","doi":"10.2139/ssrn.3391320","DOIUrl":"https://doi.org/10.2139/ssrn.3391320","url":null,"abstract":"This chapter examines whether the web of corporate criminal liability is effective from the perspective of a national jurisdiction such as the UK, specifically in relation to atrocity crimes such as crimes against humanity and war crimes. The chapter identifies blind spots in the UK's tangled legislative framework, but concludes that realism need not mean pessimism. Powerful remedies do exist, poised to be pursued.","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"137 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115790720","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper suggests that studies of FDI flows demand an examination of how multinational firms achieve legal status as corporations instead of how they use global governance and international regulation. Some sources have been investigating the impact of institutions in FDI flows, especially international business (IB) and international economic law (IEL)literatures. However,both of these literatures lack strong findings. Studies in IEL overemphasize the impact of bilateral investment treaties and investment arbitration to explain FDI, and rely on normative legal theories unsuitable to investigate causal links between legal institutions and FDI flows. In contrast, IB studies rely on methodologies suitable to find causality, but overemphasize the flow of FDI from developed to developing countries and face harsh criticism due to reliability problems. I suggest at least three central variables to assess how Brazilian firms have been achieving legal status as multinational corporations almost unexplored to date. These are: the approval of cross-border deals by the Brazilian antitrust authority;the financial support from the Brazilian Development Bank to outward FDI;and the subsidization of FDI in science and technology parks in Brazil.Investigating the impact of such variables onFDI outward Brazil demands a vision of law inspired in social science approaches to empirical research. Legal institutionalism approach inspires such methodology, when suggesting that legal institutions are necessary conditions to constitute markets,and contrasting the role of the rule of law and the private ordering.Therefore, corporations may be relying on the Brazilian rule of law to grant them legal status internationally, which provides them with ability to enforce cross-border agreements unconceivable before the 2000s. In contrast,another hypothesis is thatBrazilian multinational corporations are actually enforcing a private ordering system to keep dominant positions in their businesses and to create international oligopolies and/or monopolies.
本文认为，对外国直接投资流动的研究需要考察跨国公司如何获得公司的法律地位，而不是它们如何利用全球治理和国际监管。一些来源一直在调查制度对外国直接投资流动的影响，特别是国际商业(IB)和国际经济法(IEL)文献。然而，这两篇文献都缺乏强有力的发现。IEL的研究过分强调双边投资条约和投资仲裁对解释FDI的影响，而依赖于规范性法律理论，不适合调查法律制度与FDI流动之间的因果关系。相比之下，IB研究依赖于适合寻找因果关系的方法，但过分强调从发达国家流向发展中国家的外国直接投资，并因可靠性问题而面临严厉的批评。我建议至少有三个核心变量来评估巴西公司是如何获得跨国公司的法律地位的，迄今为止几乎没有被探索过。这些措施包括:巴西反垄断机构批准跨境交易;巴西开发银行(Brazilian Development Bank)对对外直接投资提供财政支持;以及对巴西科技园区的外国直接投资提供补贴。调查这些变量对巴西对外直接投资的影响，需要一种受到社会科学实证研究方法启发的法律视野。法律制度主义的方法启发了这种方法论，它提出法律制度是构成市场的必要条件，并对比了法治和私人秩序的作用。因此，企业可能依赖巴西的法治来赋予它们国际法律地位，这使它们有能力执行本世纪头十年之前无法想象的跨境协议。相比之下，另一种假设是，巴西跨国公司实际上是在执行一种私人订购制度，以保持在其业务中的主导地位，并创造国际寡头垄断和/或垄断。
{"title":"Using Legal Institutionalism in the Study of International Investment: Suggestions from the Expansion of Brazilian Multinational Corporations","authors":"Sarah Morganna Matos Marinho","doi":"10.2139/ssrn.3209087","DOIUrl":"https://doi.org/10.2139/ssrn.3209087","url":null,"abstract":"This paper suggests that studies of FDI flows demand an examination of how multinational firms achieve legal status as corporations instead of how they use global governance and international regulation. Some sources have been investigating the impact of institutions in FDI flows, especially international business (IB) and international economic law (IEL)literatures. However,both of these literatures lack strong findings. Studies in IEL overemphasize the impact of bilateral investment treaties and investment arbitration to explain FDI, and rely on normative legal theories unsuitable to investigate causal links between legal institutions and FDI flows. In contrast, IB studies rely on methodologies suitable to find causality, but overemphasize the flow of FDI from developed to developing countries and face harsh criticism due to reliability problems. I suggest at least three central variables to assess how Brazilian firms have been achieving legal status as multinational corporations almost unexplored to date. These are: the approval of cross-border deals by the Brazilian antitrust authority;the financial support from the Brazilian Development Bank to outward FDI;and the subsidization of FDI in science and technology parks in Brazil.Investigating the impact of such variables onFDI outward Brazil demands a vision of law inspired in social science approaches to empirical research. Legal institutionalism approach inspires such methodology, when suggesting that legal institutions are necessary conditions to constitute markets,and contrasting the role of the rule of law and the private ordering.Therefore, corporations may be relying on the Brazilian rule of law to grant them legal status internationally, which provides them with ability to enforce cross-border agreements unconceivable before the 2000s. In contrast,another hypothesis is thatBrazilian multinational corporations are actually enforcing a private ordering system to keep dominant positions in their businesses and to create international oligopolies and/or monopolies.","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126838103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-22DOI: 10.5771/9783845289496-79
Mathias Hong
If freedom of speech protects a marketplace of ideas – what is its proper currency? Is it only the force of the arguments brought forth – or is it money as well? For the current majority of the U. S. Supreme Court the answer under the U. S. Constitution seems clear: Freedom of speech must include the right to unfettered use of money in the competition. For the Court, the marketplace of ideas turns into a literal, economic marketplace. In what follows I will agree with most American scholars who sharply criticize this reading of the First Amendment. I will join in this critique, however, as somebody who genuinely admires the strong protection of free speech in the United States. I think Europe stands to learn a lot from the American model – but I agree with most scholars in the United States that the Supreme Court’s campaign finance decisions, especially since Citizens United (2010), do not do justice to that worthy American free speech tradition itself.
{"title":"Campaign Finance and Freedom of Speech – A Transatlantic Perspective","authors":"Mathias Hong","doi":"10.5771/9783845289496-79","DOIUrl":"https://doi.org/10.5771/9783845289496-79","url":null,"abstract":"If freedom of speech protects a marketplace of ideas – what is its proper currency? Is it only the force of the arguments brought forth – or is it money as well? For the current majority of the U. S. Supreme Court the answer under the U. S. Constitution seems clear: Freedom of speech must include the right to unfettered use of money in the competition. For the Court, the marketplace of ideas turns into a literal, economic marketplace. In what follows I will agree with most American scholars who sharply criticize this reading of the First Amendment. I will join in this critique, however, as somebody who genuinely admires the strong protection of free speech in the United States. I think Europe stands to learn a lot from the American model – but I agree with most scholars in the United States that the Supreme Court’s campaign finance decisions, especially since Citizens United (2010), do not do justice to that worthy American free speech tradition itself.","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117069561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent decades, issues of corporate accountability and social responsibility have risen to the forefront in international debates. The U.N. Guiding Principles on Business and Human Rights (Guiding Principles), unanimously endorsed by the U.N. Human Rights Council in June 2011, authoritatively lay out the State duty to protect and the corporate responsibility to respect human rights. In an effort to operationalize the Guiding Principles, the U.N. Human Rights Council called on all States to develop National Action Plans (NAPs) for domestic implementation of the Guiding Principles. A key first step in the creation of a NAP is the completion of a national baseline assessment of the current frameworks and conditions affecting the protection and promotion of human rights by the State and businesses alike. With over thirty-five countries now committed to the creation of a NAP, it is increasingly important to evaluate existing corporate structures that claim to be socially and ethically motivated. The “B Corp” movement began in earnest in 2006, through the work of U.S.-based non-profit B Lab. A B Corp is a business certified by B Lab as a corporation committed to creating and supporting social and environmental rights. The B Corp movement has grown in size and stature, spreading into over thirty countries and garnering a reputation for excellence. Boosts to the movement have recently come from the certification of large multinational companies and the interest of businesses that followed. As the B Corp movement continues to proliferate, its technical and normative value within the business and human rights field merits close consideration. Through a comparative analysis between the B Corp certification requirements and the Guiding Principles, this paper seeks to answer the following questions: Do B Corps fulfill the Guiding Principles’ corporate responsibility standards to respect human rights? Are they a desirable normative shift in the business and human rights context?
{"title":"The Implications of the B Corp Movement in the Business and Human Rights Context","authors":"Cindy S. Woods","doi":"10.2139/SSRN.2840804","DOIUrl":"https://doi.org/10.2139/SSRN.2840804","url":null,"abstract":"In recent decades, issues of corporate accountability and social responsibility have risen to the forefront in international debates. The U.N. Guiding Principles on Business and Human Rights (Guiding Principles), unanimously endorsed by the U.N. Human Rights Council in June 2011, authoritatively lay out the State duty to protect and the corporate responsibility to respect human rights. In an effort to operationalize the Guiding Principles, the U.N. Human Rights Council called on all States to develop National Action Plans (NAPs) for domestic implementation of the Guiding Principles. A key first step in the creation of a NAP is the completion of a national baseline assessment of the current frameworks and conditions affecting the protection and promotion of human rights by the State and businesses alike. With over thirty-five countries now committed to the creation of a NAP, it is increasingly important to evaluate existing corporate structures that claim to be socially and ethically motivated. The “B Corp” movement began in earnest in 2006, through the work of U.S.-based non-profit B Lab. A B Corp is a business certified by B Lab as a corporation committed to creating and supporting social and environmental rights. The B Corp movement has grown in size and stature, spreading into over thirty countries and garnering a reputation for excellence. Boosts to the movement have recently come from the certification of large multinational companies and the interest of businesses that followed. As the B Corp movement continues to proliferate, its technical and normative value within the business and human rights field merits close consideration. Through a comparative analysis between the B Corp certification requirements and the Guiding Principles, this paper seeks to answer the following questions: Do B Corps fulfill the Guiding Principles’ corporate responsibility standards to respect human rights? Are they a desirable normative shift in the business and human rights context?","PeriodicalId":437920,"journal":{"name":"Law & Society: Public Law - Corporations eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130164888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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