Law

This book makes an important contribution to the study of Labour Law in a number of ways. Firstly, the book offers an account of the failures of the current approach adopted in the UK (even with the EC reinforcements) for the securing of more equitable arrangements on pay. Secondly, it provides a valuable insight into the strengths and weaknesses of different approaches adopted in other parts of the world. The author of this book spent a great deal of time in Canada studying the novel approaches there, and the resulting analysis of the approaches adopted in Ontario, and also Australia form a good part of the book. Thirdly, the book addresses the wider issues of different forms of wage regulation and enriches our understanding by indicating that the gender pay gap may be determined to some extent by the way in which pay is regulated. This leads to the conclusion that more emphasis on wage payment structures would be a more helpful way of dealing with the problem of equal pay than the current preoccupation with an individual complaints driven model.

The emergence of a ‘labour market’ in industrial societies implies not just greater competition and increased mobility of economic resources, but also the specific form of the work relationship which is described by the idea of wage labour and its legal expression, the contract of employment. This book examines the evolution of the contract of employment in Britain through a close investigation of changes in its juridical form during and since the industrial revolution. The initial conditions of industrialization and the subsequent growth of a particular type of welfare state are shown to have decisively shaped the evolutionary path of British labour and social security law. In particular, the book argues that nature of the legal transition which accompanied industrialization in Britain cannot be adequately captured by the conventional idea of a movement from status to contract. What emerged from the industrial revolution was not a general model of the contract of employment, but rather a hierarchical conception of service, which originated in the Master and Servant Acts and was slowly assimilated into the common law. It was only as a result of the growing influence of collective bargaining and social legislation, and with the spread of large-scale enterprises and of bureaucratic forms of organization, that the modern term ‘employee’ began to be applied to all wage and salary earners. The concept of the contract of employment which is familiar to modern labour lawyers is thus a much more recent phenomenon than has been widely supposed. This has important implications for conceptualizations of the modern labour market, and for the way in which current proposals to move ‘beyond’ the employment model, in the face of intensifying technological and institutional change, should be addressed.

Forty years ago, managerialism dominated corporate governance. In both theory and practice, a team of senior managers ran the corporation with little or no interference from other stakeholders. Boards of directors were little more than rubber stamps. Today, corporate governance looks very different. In particular, several trends have coalesced to encourage more active and effective board oversight. Much director compensation is now paid in stock, for example, which helps align director and shareholder interests. Courts have made clear that effective board processes and oversight are essential if board decisions are to receive the deference traditionally accorded to them under the business judgment rule, especially insofar as structural decisions are concerned (such as those relating to management buy-outs). Third, director conduct is constrained by an active market for corporate control, ever-rising rates of shareholder litigation, and, some say, activist shareholders. As a result, modern boards of directors typically are smaller than their antecedents, meet more often, are more independent from management, own more stock, and have better access to information. This book offers an interdisciplinary analysis of the emerging board-centered system of corporate governance. It draws on doctrinal legal analysis, behavioral economic insights into how individuals and groups make decisions, the work of new institutional economics on organizational structure, and management studies of corporate governance. Using those tools, it traces the process by which this new corporate governance system emerged. How did we move from the managerial revolution famously celebrated by Alfred Chandler to the director independence model recently codified in the Sarbanes-Oxley Act and other post-Enron corporate governance mandates?

This book is an analytical study of the current English law of traditional contracts of employment and of other personal employment contracts. Concentrating on the common law basis of individual employment law, it takes full account of relevant British and European Community legislation up to and including the Employment Act 2002, and considers the impact of the Human Rights Act 1998 and of the developing law of human and social rights more generally. This book takes account of the very considerable amount of case-law, legislation, and legal writing which has affected the law of the contract of recent employment. This book addresses a wide range of employment relationships; in fact, it argues for and is constructed around a whole new category of employment contracts, which includes not only contracts of employment but also other ‘personal employment contracts’, a concept which the book articulates and justifies. Within that novel conceptual framework, many of the major features of the law of employment contracts are re-examined and presented in unfamiliar and challenging terms. Thus, the employer is re-conceptualized as the ‘employing enterprise’, the bilateral structure of employment contracts is re-evaluated, and new explanations are advanced for the functioning of the law of termination of employment contracts and of remedies for wrongful termination.

Providing a definition of personal property law, this book demonstrates why an understanding of the principles of personal property is important. In defining the various types, the author discusses the common law interests (ownership and possession) and deals with the proprietary characteristic of bailment in the process. There is also an outline discussion of equitable interests. The author describes the means by which the common law protects interests in personal property and discusses the ways in which interests are conveyed at common law. He examines the rule of ‘nemo dat quod non habet’ with its various exceptions, and, in treating the assignment of choices in action, compares it with negotiability. Finally, there is an introduction to security over personal property in the form of lien, pledge, charge, and mortgage. Important changes since the first edition of this book include the Sale of Goods (Amendment) Act 1995 and the Treasure Act 1996.

Bankrupt Enron paid well over a billion dollars in cash to bankruptcy lawyers, financial advisors, and other bankruptcy professionals. The managers of most bankrupt companies pay the professionals with money that would otherwise have gone to creditors, employees, shareholders, or to saving the companies. To prevent excessive payments, the bankruptcy code and rules establish an elaborate system for public reporting and court approval of professional fees. Armed with the ability to choose among courts that want or need to attract the cases, the professionals have largely taken charge of the fee-control system and rendered it toothless. The professionals ignore many of the governing rules and the courts do nothing about it. Effective methods for assessing and controlling fees do exist, but it is not in the interests of the courts or the professionals to apply them. This book is based on a study of thousands of documents from the court files in over a hundred of the largest bankruptcy cases. It employs statistical analysis and documents its findings, and provides an unprecedented window on the worlds of bankruptcy professionals, professional fees, and their scientific study. Through that window, the book shows both a disturbing picture of a legal system in crisis and a hopeful one with opportunities for desperately needed reform.

The book examines the commitment of English law to the protection of contractual performance. It considers specific remedies, termination, compensatory damages, gain-based monetary awards, punitive damages and contractually negotiated remedies. It also looks forward by considering how the protection of performance could be strengthened in the future. English law remedies for breach of contract are considered through the comparative study of French law, which offers significant scope for informative contrast. It sheds new light on contractual remedies in both jurisdictions and challenges fundamental aspects of English law in this area. The book covers recent academic debates and developments in the case law on both sides of the Channel. It also comments on aspects of two recent far-reaching reform projects relating to the French Civil code and of the Draft Common Frame of Reference.

Consumers routinely enter into long-term contracts with providers of goods and services — from credit cards, mortgages, mobile phones, insurance, TV, and internet services to household appliances, events, health clubs, magazines, and transportation. Across these consumer markets certain design features of contracts are recurrent, and puzzling. Why do sellers design contracts to provide short-term benefits and impose long-term costs? Why are low introductory prices so common? Why are the contracts themselves so complex, with numerous fees and interest rates, tariffs, and penalties? This book explains how consumer contracts emerge from the interaction between market forces and consumer psychology. Consumers are short-sighted and optimistic, so sellers compete to offer short-term benefits, while imposing long-term costs. Consumers are imperfectly rational, so sellers hide the true costs of products and services in complex contracts. Consumers are seduced by contracts that increase perceived benefits, without actually providing more benefits, and decrease perceived costs, without actually reducing the costs that consumers ultimately bear. Competition does not help this behavioural market failure. It may even exacerbate it. Sellers, operating in a competitive market, have no choice but to align contract design with the psychology of consumers. Put bluntly, competition forces sellers to exploit the biases and misperceptions of their customers. This book argues that better legal policy can help consumers and enhance market efficiency. Disclosure mandates provide a promising avenue for regulatory intervention. Simple, aggregate disclosures can help consumers make better choices. Comprehensive disclosures can facilitate the work of intermediaries, enabling them better to advise consumers. Effective disclosure would expose the seductive nature of consumer contracts and, as a result, reduce sellers' incentives to write inefficient contracts.

Environmental harm is commonly associated with the front-line companies that most visibly consume and pollute our shared natural resources. Rarely are the “unseen polluters”, the financial institutions that fund and profit from eco-damaging corporations put at the forefront of the environmental debate. By focusing on these unseen polluters, this book provides a comprehensive examination of the response of the movement for socially responsible investment (SRI) and its current regulation worldwide. It finds that in recent years SRI has shifted away from its traditions of ethical investment to a business case approach, whereby social and environmental issues are addressed largely only if they are perceived as “financial material” to investors. Further, the contemporary SRI movement lacks sufficient influence in financial markets to provide a viable framework of governance to offset the deficiencies and gaps in official regulation. In offering a guide to possible reform to ensure that the financial sector prioritizes ethically-based investments, this book proposes greater regulatory supervision of SRI. It suggests that new governmental reforms should provide financiers with a better mix of economic incentives and informational resources. More importantly, it also argues for redefining the fiduciary responsibilities of institutional investors to incorporate environmental concern. Through these and other measures, the book posits that corporate financiers, including banks, mutual funds and pension plans, will be more accountable to the goals of achieving environmentally sustainable development.

Scholars have offered positive, normative, and interpretive theories of contract. These theories have necessarily proceeded from deontic and consequentialist premises. This book argues that there can be no unified and comprehensive interpretive theory of contract, and it is not even possible to stack the extant theories to make much theoretical sense of the law. The book asserts that theoretical constructions have generally proceeded from theory and tapped doctrine as appropriate to establish their premises, but have not been sufficiently considerate of doctrine. A more careful and candid approach to the contours of doctrine reveals that it cannot support convincing positive, normative, or interpretive accounts. The book explains that the disjunction between doctrine and what theory would have doctrine be is manifest when the fundamental constituents of doctrine, the cases that form the contract canon, are exposed to the limited light that theory would cast. The book formulates the canon and then demonstrates the failure of extant theory, concluding that an appreciation of doctrine in terms of the contributions of moral psychology explains the failure of theories proceeding from deontic or consequentialist premises. Once we take account of the human agent and the human agent’s engagement with the doctrine, we are in a better position to appreciate how the normative structure of doctrine reflects the empirical morality moral psychology would confirm.