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WP534: Reclaiming the Relational Ontology of the Fiduciary and Exploring Relational Ethics
Despite the omnipresence of the fiduciary in organisations, there is an omission of contemporary theorisations of this legal concept within the organisational theory literature. This is particularly surprising given the situation that the presence of ethics within the fiduciary is increasingly contested ground, with clear implications for managerial practice. This article addresses the lacuna by theorising the fiduciary using an original ontological analysis, alongside identifying a suitable ethical framework. It argues on two grounds that the ontology of the fiduciary is inherently relational. The fiduciary’s process-oriented focus is shown to indicate an open, emergent, and relational ontology at work. Secondly, historical investigation of the development of the fiduciary highlights its core relationship structure, and the interdependency and power dynamic embedded in the fiduciary are revealed. The argument is advanced that by bringing this inherent relational ontology to the fore, we can see how a relational ethical framework – the Ethics of Care – is best placed to explicate the ethics at work. The article concludes with a discussion outlining how the ontological theorisation offers utility in steering future practice of the fiduciary.
WP533: Exploring Epistemic Vices in the Fiduciary: Injustice and Beyond
The paper investigates epistemic vices in the fiduciary. Building on existing work exploring the presence of epistemic injustice embedded in the fiduciary, the paper examines the presence of another vice – epistemic hubris – and suggests how epistemic injustice acts as a capital vice within the context of the fiduciary, facilitating hubris to flourish. Three interrelated arguments are advanced. The first focuses on how the asymmetrical leader-follower dynamic within the fiduciary results in hubris. The second builds on this exploring how the lack of consultation with the beneficiary alongside deployment of specific economic epistemic goods to interpret the fiduciary results in additional hubris. The third draws the two together, arguing that as epistemic injustice creates conditions for both examples of hubris to flourish, it serves as a capital vice within the context of the fiduciary. Finally, safeguarding suggestions are outlined for how these epistemic vices could be avoided.
WP532: Legal Perception and Finance: The Case of IPO Firm Value
Gerhard Schnyder, Anna Grosman, Kun Fu, Mathias Siems and Ruth V. Aguilera
In this paper, we contribute to the literature on institutional determinants of IPO valuation. We introduce the concept of ‘legal signaling,’ which focuses on the perception of the quality of law and thus complements the existing institutional approaches to IPO valuation which consider the quality of the positive law (‘standard view’) and firm-level corporate governance practices (‘firm signaling view’). Our approach explicitly models the difference between the effect of the positive law and the effect of the perception of law on IPO value. Based on a worldwide longitudinal dataset of IPO performance across a large number of countries, we find strong support for the claim that the perception of the quality of law is more important than its actual quality to explain post-IPO firm value. This effect holds regardless of whether the law’s quality is correctly perceived or misperceived. Overall, our findings underscore the need for a more sophisticated theorisation of the ways in which law affects entrepreneurial finance.
WP531: What is a Firm? A Reply to Jean-Philippe Robé
Simon Deakin, David Gindis and Geoffrey M. Hodgson
In his recent book on Property, Power and Politics, Jean-Philippe Robé makes a strong case for the need to understand the legal foundations of modern capitalism. He also insists that it is important to distinguish between firms and corporations. We agree. But Robé criticises our definition of firms in terms of legally recognised capacities on the grounds that it does not take the distinction seriously enough. He argues that firms are not legally recognised as such, as the law only knows corporations. This argument, which is capable of different interpretations, leads to the bizarre result that corporations are not firms. Using etymological and other evidence, we show that firms are treated as legally constituted business entities in both common parlance and legal discourse. The way the law defines firms and corporations, while the product of a discourse which is in many ways distinct from everyday language, has such profound implications for the way firms operate in practice that no institutional theory of the firm worthy of the name can afford to ignore it.
WP530: Premature Deindustrialization Inter-sectoral Employment Shifts, and Accelerated Servicization
Kazunori Fujimoto and Hugh Whittaker
Concern about the implications of ‘premature deindustrialization’ for economic growth of developing countries has evolved into investigation over whether parts of the service sector can play a propulsive role similar to that played by manufacturing previously. Such investigation is hampered by coarse and changing service sector classifications, but it does appear that some service sectors play such a role. In this paper we take the incremental but important step of identifying whether employment growth in certain service sectors corresponds with employment loss in manufacturing through ‘premature deindustrialization,’ deploying the counter-concept of ‘accelerated servicization.’ Investigating employment growth in key service sectors which are more finely classified than those used in the previous studies, we find that: (1) of five broadly classified service sectors, only that encompassing ‘FIRE (finance, insurance and real estate) and business services’ demonstrates accelerated servicization, and (2) this is attributable to the component sectors of ‘information services’ and ‘business support,’ but not FIRE. In fact FIRE exhibits a distinctive pattern, warranting the label ‘quasi service.’
WP529: A Two-Stage Model of Decision-Making over Financial Reporting Regimes and Techniques: Analysis and UK Case Studies
Yu-Lin Hsu and Gavin C. Reid
This paper develops a new two-stage decision model to explain the choices of financial reporting regimes (e.g. IFRS or UK GAAP) and techniques (e.g. valuing intangibles, by cost, income, or market methods) for UK companies. The theoretical framework is based on the choice theory of orderings (Lex and CoLex) and is expressed in decision trees which capture firms’ actions, based on calibrated benefits and costs. The decision-making processes are examined through three UK empirical case studies (one private and two public firms), that expound their decision trees, and explain their decisions. We probe the rationale of their decisions using field-work investigation methods, through which we develop a ‘stated preference’ metric of choice, which allows us to interpret how decisions are made, and how they differ: over time (notably when regime changes are being implemented e.g. the emergence of New UK GAAP post-2015); and across firms (where factors like ease of execution and the quality and quantity of information needed for decisions, are shown to play a large part).
WP528: A Social Recovery, Workplace Democracy and Security: COVID-19 and Labour Law
The COVID-19 pandemic has shown the painful consequences of poor job security and workplace democracy. The UK government’s initial flirt with ‘herd immunity’, the delay in lockdown, and the absence of a work strategy that prioritised safety after the summer of 2020, caused among the most appalling death rates in the world, worse than Trump’s America. However, a swift change in the job security policy stemmed mass unemployment, after initial reports of 2.1 million people claiming unemployment benefits. The ‘Coronavirus Job Retention Scheme’ eventually meant that the unemployment statistics (as opposed to claimant count) showed only a modest jobless rise. Comparison with the US where there are effectively no rights, and other countries with strong rights, shows that universal social security and workplace democracy are at the core of successful economic performance. This paper explains the UK’s health and safety rights, how the job retention scheme was unfurled with extension to employed and self-employed, and the connection between votes at work and employment. It shows how reality discredits the minority views of economic theorists who oppose labour rights, and suggests the legal reforms we can undertake to achieve a social recovery.
WP527: The Future of Democracy and Work: The Vote in our Economic Constitution
What should be the future of democracy? COVID-19 has exposed a desperate need, not just for a green recovery, and a social recovery, but a political recovery, to remake our institutions for the future, for justice on living planet. Today we are seeing that the vote, ‘a most transcendent thing’, is becoming an essential part of our economic constitution: votes at work, votes in capital and votes in public services. This is already practised, however imperfectly, however forgotten, in universities like Toronto, Cambridge, Oxford or Harvard, and the movement is growing, as it should. The evidence shows we are more productive, innovative, happy, and less unequal, when we have voice. Having moved ‘from status to contract’ in the industrial revolution, the future of work involves a move ‘from contract to membership’. The ‘right to take part in the government’ of our societies is depending less and less on holding money, or ‘other people’s money’, but is becoming universal. The days where shareholders monopolise the votes in the economy, and asset managers or banks monopolise votes on shares, are numbered. The true investors in the wealth of nations, people at work, savers for retirement, and all members of our society, are the future of democracy.
WP526: From ‘Capital and Ideology’ to ‘Democracy and Evidence’: A Review of Thomas Piketty
Thomas Piketty’s Capital and Ideology (2020) is a major, encyclopaedic and data-driven contribution to the effort of constructing a better human civilisation. This review summarises the main argument: a positive thesis that in every society, ideology feeds laws and institutions that create inequality, and inequality then bolsters ideology; a normative thesis that we need a better ideology, including ‘participatory socialism’, to solve our biggest challenges. The review then complements and critiques three central issues in the argument, that (1) the true concentration of economic power, the votes in the economy, is even more extreme than inequality of wealth and income, (2) the legal construction of markets, through property, contract, corporate, or human rights law, can ‘pre-distribute’ income and wealth to a vast extent before tax, and (3) social justice means expanding (not merely correcting or re-distributing) everyone’s opportunity, creative capacity, and human potential, and helps everyone to develop their personality to the fullest. Social justice is an unparalleled force, and is still the best answer to far-right, authoritarian or other failed ideologies, which have escalated inequality and driven climate damage. Perhaps the greatest achievement of Piketty’s work could be to bring economics firmly back to the values in the Universal Declaration of Human Rights.
WP525: Decoding Employment Status
There is much at stake in the classification of work relations: on the one hand, the stability of the tax base and the capacity of the state to deliver public goods; on the other, the structure of enterprise and the rights of workers in the ‘gig’ economy and beyond. Classification decisions, however, are made using legal concepts which many view as artificial and manipulable, to the point where it is hard to discern the considerations which are actually guiding decisions. Decomposing the ‘employment’ concept reveals something of the implicit ‘weighting’ of tests and indicators which underlies judicial and administrative determinations. Viewed in this light, statutory reformulations such as the ‘ABC’ test can play a role in ‘reweighting’ the classification process, extending the protective coverage of labour laws and resisting fiscal erosion.
WP524: The Governance of COVID-19: Anthropogenic Risk, Evolutionary Learning, and the Future of the Social State
Simon Deakin and Gaofeng Meng
We consider the implications of the COVID-19 crisis for the theory and practice of governance. We define ‘governance’ as the process through which, in the case of a given entity or polity, resources are allocated, decisions made and policies implemented, with a view to ensuring the effectiveness of its operations in the face of risks in its environment. Core to this, we argue, is the organisation of knowledge through public institutions, including the legal system. COVID-19 poses a particular type of ‘anthropogenic’ risk which arises when organised human activity triggers feedback effects from the natural environment. As such it requires the concerted mobilisation of knowledge and a directed response from governments and international agencies. In this context, neoliberal theories and practices, which emphasise the self-adjusting properties of systems of governance in response to external shocks, are going to be put to the test. In states’ varied responses to COVID-19 to date it is already possible to observe some trends. One of them is the widespread mischaracterisation of the measures taken to address the epidemic at the point of its emergence in the Chinese city of Wuhan in January and February 2020. Public health measures of this kind, rather than constituting a ‘state of exception’ in which legality is set aside, are informed by practices which originated in the welfare or social states of industrialised countries, and which were successful in achieving a ‘mortality revolution’ in the course of the nineteenth and twentieth centuries. Relearning this history would seem to be essential for the future control of pandemics and other Anthropogenic risks.
WP523: The Impact of Intellectual Property Types on the Performance of Business Start-ups in the USA
Bernadette Power and Gavin C Reid
Using a large, longitudinal panel (2004-2011) of USA start-ups this paper shows the extent to which IP types (e.g. trademarks, patents, copyrights, outward licensing) enhance multidimensional performance. An ordered probit analysis (with random effects), corrected for sample selection bias, estimates performance to derive the following conclusions. First, trademarks and out-licensing IP types increase a firm’s chances of being a high performer, confirming the importance of certain forms of IP protection for start-ups. Second, patenting significantly reduces the chances of being a high performer, suggesting patenting has limited performance benefits for start-ups. Third, few performance synergies exist in the joint use of IP types, suggesting that strong complementarities among IP types are limited. While out-licensing patents and out-licensing copyrights certainly increase performance, out-licensing patents and out-licensing trademarks actually diminish it. Further, registering more trademarks and outlicensing more trademarks also diminishes performance, suggesting start-up firms should keep trademarks in-house.
Working paper (Centre for Business Research, University of Cambridge. Online)