Empirical insights into corporate contractarian theory

Attenborough, Daniel

doi:10.1111/lest.12134

Cited by 2 publications

(1 citation statement)

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“…Without, in truth, really recognizing the profundity of the issue, 5 Sunstein is broaching the fundamental question posed by all truly radical critique of market order: is market order but one social form of order which, because it is merely social, we are at liberty to alter as we wish if we are able to marshal sufficient political will to do so; or does market order in some way actually reflect an existential, and in this sense natural, property of economic life as human intercourse with nature? I am gratified that my own writings have been cited as authority for rejecting the conflation of actually existing capitalist institutions with natural givens (most recently Attenborough, 2017: 213). But this is not to say that the market economy cannot be justified because of the way it relates to natural givens, and I believe that it can be so justified, though actualizing that justification requires the creation of market socialism.…”

Section: A Taxonomy Of Regulation Derived From Pigoumentioning

confidence: 99%

The ‘Market’ in the Theory of Regulation

Campbell

2017

Social & Legal Studies

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market socialism has been struck off the agenda [but] a humane social market economy is the only sort of free economy likely to survive in the years to come, and the only sort that deserves to survive.John Gray, The Moral Foundations of Market Institutions (1992: 123). Note by courtesy of the Editorial BoardI was honoured to be asked to write, with Sol Picciotto, a paper on 'Regulation' which would be considered for the recent special issue of Social and Legal Studies commemorating the journal's 25th anniversary. The paper I drafted did not meet the reasonable expectations of either Picciotto or the editors of the special issue, and I withdrew it, with the positive consequence that an excellent paper by Picciotto alone appeared in that special issue.The difficulty was that my paper which, as it left my hands, was dominated by an argument that, as an acute reviewer put it, 'Left-wing regulatory theory consistently undersells its own large ambitions by failing to establish a positive theory of the market'. This was not the right way to approach a general review of 25 years of the achievement of left-wing regulatory theory. It says something about the objectivity of my colleagues on the Editorial Board of this journal that they nevertheless insisted that, after I withdrew it, my draft paper should be reviewed as an, as it were, ordinary submission, and subsequently decided to publish it, though it certainly has the purpose the reviewer described.

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Section: A Taxonomy Of Regulation Derived From Pigoumentioning

confidence: 99%

The ‘Market’ in the Theory of Regulation

Campbell

2017

Social & Legal Studies

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Not by Contract Alone: The Contractarian Theory of the Corporation and the Paradox of Implied Terms

Gibbs-Kneller

Gindis

Whayman

2022

Eur Bus Org Law Rev

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Contractarians view the corporation as a nexus of contracts, constituted by the express or implied consent of each party to or contracting with it. Strong-form contractarianism takes this claim literally and holds that a corporation can be created and sustained by contract alone, thanks notably to the courts’ supportive gap-filling role. We argue that this view is undermined by the way courts actually treat implied terms. While courts do attempt to fill gaps and hold parties to their bargains, they do not typically manufacture counterfactual consent by resorting to the hypothetical bargain logic of contractarianism. Even under the most flexible form of contract law, the common law contract, the capacity of courts to imply third-party obligations in multi-party contracts is highly limited. This makes the contractarian reliance on contract and the courts to construct the complex set of multi-party obligations that make up the corporate form implausible.

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Empirical insights into corporate contractarian theory

Cited by 2 publications

References 47 publications

The ‘Market’ in the Theory of Regulation

The ‘Market’ in the Theory of Regulation

Not by Contract Alone: The Contractarian Theory of the Corporation and the Paradox of Implied Terms

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