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Edited by D. G. Smith and Andrew S. Gold

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Edited by D. G. Smith and Andrew S. Gold

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Tom R. Tyler

This chapter reviews the effectiveness of deterrence, in and of itself as well as relative to the influence of consensual models of regulation that rely upon legitimacy to motivate compliance. The law governing corporate criminal enforcement, and the law and economics scholarship designed to inform it, treats deterrence as the primary goal and coercion through threatened sanctions as the most effective tool to achieve this goal. Yet the available evidence on the causes of misconduct suggests that although people do respond to threatened sanctions, the influence of coercion is often overstated relative to its actual influence upon law-related behavior. In addition consensual approaches have been found to be more effective than is commonly supposed. Taken together these findings suggest the desirability of developing a broader approach to corporate regulation using both coercive and consensual models of regulation. Given the strength of the findings for consensual models, the persistence of coercive models as the dominant and even exclusive approach to corporate crime is striking. That dominance suggests the importance of focusing on the psychological attractions of coercion to people in positions of authority. It is suggested that those in authority are attracted to this approach not only because of evidence that it can be effective but also due to the psychological benefits it affords them.

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Jennifer Arlen

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Edited by Jennifer Arlen

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General introduction

Perspectives for Sustainable Corporate Governance

Catherine Malecki

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Jared Rubin

Chapter 1 examines how a polity evolved without anything resembling a corporation law. In the Islamic world, corporations did not develop until the mid-19th century, even though it was economically far ahead of Europe for centuries. Taking the Ottoman Empire as a case study, Jared Rubin attributes this to a dampening effect of Islamic law—being careful, however, to note that his argument is not that ‘Islam is incapable of change or it is some inherent Islamic conservatism that is at fault.’ Rather, he argues, in Islamic polities rulers’ legitimacy rested heavily on the clerical establishment, and resulted in large areas of law being ceded to that establishment—including commercial law. Yet, while Islamic law provided for partnerships, those partnerships were dissolved on a partner’s death, and inheritance law provided for distribution of the partner’s assets to heirs by a fixed formula. These inflexible rules hindered the growth of large-scale partnerships similar to those that, in Europe, slowly led to joint-stock companies and then corporations. In sum, the power arrangement that left commercial law to the clerical establishment ultimately blocked the development of corporations as well as other commercial arrangements that, in Europe, helped spur economic growth.

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Harwell Wells

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Investment funds in an era of financialisation

The Promises and Limitations of the New Financial Economy

Roger M. Barker and Iris H.-Y. Chiu

We discuss the rise of institutional fund management as part of the global trend towards financialisation. This context allows us to draw out the key characteristics of modern institutional fund management which are important in shaping their corporate governance roles. The context of financialisation allows us to appraise whether institutions behave like fiduciary or universal capitalists as some commentators have proposed, or self-interested agency capitalists, as suggested by others. Key words: financialisation, fiduciary capitalism, universal owners, agency capitalism, money manager capitalism, asset allocation.