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Making law in America is not a simple task. It can be legislated by Congress, enforced by the executive, interpreted by the courts, and augmented by a massive body of rules created by administrative agencies such as the Securities and Exchange Commission (SEC). The Dodd-Frank Wall Street Reform and Consumer Protection Act (2010) (Dodd-Frank was passed) with an eye to preventing future financial crises. Four years later, many details of Dodd-Frank have yet to be finalized as the SEC is still in the process of developing the regulations that the legislation required them to create. Even once the regulations are finalized by the SEC, the regulations will be challenged by various parties in the courts. The regulations will be either upheld or rejected. Those that are upheld will then face numerous challenges when applied in specific cases, while those rejected will have to be redone all over again. The process of developing these regulations is cumbersome and attracts many of the special interests that were present in the legislative phase of Dodd-Frank and who will also be present in the litigation phases of testing Dodd-Frank in the courts. This paper focuses on the requirement that investment advisors and broker-dealers be deemed as owing fiduciary duties to their clients as a case study for the entangled political economy theory. The paper shows how the development of a simple rule such as whether these fiduciary duties should be owed or not requires years of back and forth between the legislative, executive, administrative, and judicial branches.

Andrew Williams and I have argued since the early 1990s that not only have equity (and subsequently most other assets classes) come to be dominated by institutional ownership of various types, an observation that many have made and documented at length, but that the majority of those institutions are fiduciary ones (primarily pension and mutual funds in the United States). More recently pension and mutual funds have been the source of the majority of funds for many ‘alternative’ investments, such as hedge funds, private equity and commodity funds. In the last two decades there have been parallel developments in other countries, although the form of the institutional investors vary widely, from fiduciary ones mostly in common law countries to fiduciary-like ones in many civil law jurisdictions (e.g. the Netherlands), to some sovereign wealth funds (e.g. Norway and Australia and some others) which do not have fiduciary obligations as such, but in their legal mandates and practices are structured much like those that are fiduciary or fiduciary like. As discussed below, all these (in addition to some other large institutional owners) are universal owners, that is, they own a representative cross section of their investment universe (which increasingly is a global universe). Given their ownership structure characterised by a large degree of diversification, universal owners' long-term interests to a large degree coincide with the economy as a whole.

Despite the existence of a variety of approaches to the understanding of behavioral and managerial ethics in organizations and business relationships generally, knowledge of organizing systems for fidelity remains in its infancy. We use halakha, or Jewish law, as a model, together with the literature in sociology, economic anthropology, and economics on what it termed “middleman minorities,” and on what we have termed the Landa Problem, the problem of identifying a trustworthy economic exchange partner, to explore this issue.

The article contrasts the differing explanations for trustworthy behavior in these literatures, focusing on the widely referenced work of Avner Greif on the Jewish Maghribi merchants of the eleventh century. We challenge Greif’s argument that cheating among the Magribi was managed chiefly via a rational, self-interested reputational sanctioning system in the closed group of traders. Greif largely ignores a more compelling if potentially complementary argument, which we believe also finds support among the documentary evidence of the Cairo Geniza as reported by Goitein: that the behavior of the Maghribi reflected their deep beliefs and commitment to Jewish law, halakha.

Applying insights from this analysis, we present an explicit theory of heroic marginality, the production of extreme precautionary behaviors to ensure service to the principal.

Generalizing from the case of halakha, the article proposes the construct of a deep code, identifying five defining characteristics of such a code, and suggests that deep codes may act as facilitators of compliance. We also offer speculation on design features employing deep codes that may increase the likelihood of production of behaviors consistent with terminal values of the community.

This chapter collects and categorizes the principal theoretical debates respecting corporate law in the United States. What emerges is not a synthetic whole but a dialectic framework. Corporate law's theoretical debates do not resolve; their arguments and conclusions are determined by metapolitical preferences and unverified notions about aligning productivity incentives. But despite the debates, the acknowledged premise that corporations exist to create wealth by producing goods and services at a profit directs all theories of corporate law to two objectives. First, corporate law encourages long-term investment and risk-taking by facilitating a delegation of decision-making authority from the providers of capital to the expert managers who deploy it. Second, corporate law facilitates investment in producing assets at the lowest possible cost of capital, securing the presence of liquid trading markets in corporate securities.

This chapter assesses the impact of socially responsible investing (SRI) in terms of its role in governance. Governance refers to the rules, incentives, institutions and philosophies for coordinating, controlling and supervising behaviour. The SRI sector purports to be a mechanism of market governance, such as through its codes of conduct and targeting of individual companies by engagement or divestment.

This subject-matter of the chapter is evaluated primarily through a conceptual and theoretical argument rather than empirical research.

Social investors’ capacity to ‘govern’ the market is constrained by gaps and deficiencies in the legal frameworks for the financial economy. Fiduciary law controlling institutional investors is the most important element of this governance framework. The SRI movement is starting to broaden its agenda and strategies to include advocacy for regulatory reform. But the SRI industry has devoted attention to its own voluntary codes of conduct, such as the UNPRI, which do not yet provide a sufficiently comprehensive or robust substitute for official regulation.

Paradoxically, whereas SRI once stood for taking action through the financial economy when governments had failed to act, the sector is also somewhat dependent on the state to provide an empowering governance framework. But state regulation itself may be strengthened by partnership with the SRI industry, such as by utilising its codes of conduct to supplement official legal standards.

The chapter deepens insights into the relationship between the SRI sector as a largely voluntary movement and its legal governance through the state or the market.

Principal-agency theory was adapted from business and economics to explain the behavior of various government actors. Yet the idea of an agent and a principal is only depicted in a limited fashion when discussed in light of the realm of business and economics. Legal studies has grappled with the idea of agency well before political science or economics. I lay out the basic principles of both agency law and Congressional principal-agent theory. I then establish the groundwork for drawing important connections between agency law and principal-agency theory. I also analyze and attempt to ameliorate differences between these two theoretical approaches.

Corporate social responsibility describes the role that society expects of business organizations. Because it is difficult to see societal norms in one's own society, comparative law can help us increase the salience of those norms in our own community. Looking at how a set of business laws uniform across 16 West and Central African countries lives in one of the member states, Cameroon, we see that society expresses its norms not only when behavior tracks the positive law, but also, and very importantly, when it diverges from that law. After studying examples of divergence in the South, specifically in the African country Cameroon, the chapter turns to the North. Using the United States as the illustration, and focusing on the role of business entities, the chapter identifies ways of opening the discussion among all political constituents, even those outside the traditional business community.

Shareholder dividends are “rents”: they are paid out of a producer's surplus that, in a fully competitive market, would not exist. In any market system, no one has a right to rents. Why, then, do shareholders receive dividends? Most likely, share gains have been the result of the usefulness of the share-centered ideologies in justifying a tremendous shift of corporate wealth from employees to an alliance of top managers and shareholders. This alliance now shows signs of breaking down, as the managers learn they no longer need the ideological cover. Standard accounts conceal the struggle over corporate surplus and the weakness of shareholder claims to appropriate it. Recognizing that distribution of corporate surplus is a political struggle is the first step towards a less ideologically blindered discussion of how that struggle ought to be structured.