Legal Studies Research Paper Series Vol. 12, No. 3

The Faculty has published Volume 12 Number 3 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Jenifer Varzaly: The Dynamics of Shareholder Dispersion and Control in Australia (5/2021)

There is ongoing academic interest in understanding share ownership and control dynamics in publicly listed companies, given the corporate governance and regulatory implications arising therefrom. This article presents a new dataset and analysis of shareholder information, focusing on the largest 50 publicly listed companies in Australia, filling a striking 12 year gap in the existing literature. Specifically, the following issues are addressed:

1. The level of institutional ownership within the largest 20 shareholders in each of the 50 companies;
2. The concentration of that ownership based on the percentage of issued capital owned by the largest three shareholders;
3. The control of that ownership, to determine whether ownership and control diverge; and
4. Where ownership and control diverge, substantial shareholding information is collected and analysed, in order to provide a more complete picture of share ownership patterns in the Australian context.

Federica Paddeu: Shared Non-responsibility in International Law? Defences and the Responsibility of Co-perpetrators and Accessories in the Guiding Principles: Afterword (6/2021)

This comment assesses the approach to the reach of defences beyond the international legal person(s) who is (or are) the author(s) of the internationally wrongful act articulated in Guiding Principle 5 of the Guiding Principles on Shared Responsibility in International Law. It will focus on three main points: (1) whether the choice in respect of the reach of defences in Principle 5 is justifiable for the international legal order; (2) the reach of defences in cases of coercion, where the coerced party may benefit from a defence due to the coercion (in the form of a force majeure defence); and (3) the ‘blindspot’ in the Guiding Principles in relation to defences of accessories, in particular where the conditions for accessorial liability are defined broadly as in the case of Principle 6 on aid and assistance.

Anna Christie: The Agency Costs of Sustainable Capitalism (7/2021)

In this Article, I build upon Gilson and Gordon’s “agency capitalism” framework to put forward a new agency-costs theory of sustainable capitalism. In this “sustainable capitalism” framework, I show that the Big Three still exhibit some form of “rational reticence”, especially with regard to firm-specific sustainability activism. I theorize that they may also be inflicted with a second agency problem that I call “rational hypocrisy”. This concept is similar to corporate greenwashing as the Big Three are incentivized to claim that they have a stronger commitment to sustainability than is actually reflected in their voting and engagement records in reality. The combination of “rational reticence” and “rational hypocrisy” results in a dual monitoring shortfall–the “agency costs of sustainable capitalism”.

Matthew H. Kramer: Incorporationism, Inclusivism, and Indeterminacy (8/2021)

This paper, which has been written as a contribution to a festschrift for Wil Waluchow, concentrates on the area of legal philosophy in which his finest accomplishments have occurred: namely, the area of general jurisprudence. Indeed, it concentrates more specifically on Inclusive Legal Positivism and especially on Incorporationism. Ever since the publication of Waluchow’s magisterial 1994 volume Inclusive Legal Positivism, the phrase “Inclusive Legal Positivism” has come to be the dominant designation for both of the two doctrines just mentioned. Nevertheless, I shall continue here my practice of referring to them with the separate designations which I have employed. This paper will mull over some issues that arise from my previous work on Inclusive Legal Positivism and Incorporationism, in order to amplify and refine and somewhat modify that earlier work by pondering some complexities that are not fully explored therein. Though a recent essay by Waluchow (2021) was not aimed at prompting my present meditations, that essay is in fact what has inspired them.

Matthew H. Kramer: Arts, Excellence, and Warranted Self-Respect (9/2021)

Funding for the arts is quite frequently commended by certain political philosophers and political pundits (whom I shall call “edificatory perfectionists”) as a policy that can incline people to improve their ways of life by taking advantage of cultural opportunities. By contrast, this article – which is a substantially modified and abridged version of a few sections from Chapter 8 of my 2017 book Liberalism with Excellence -- advocates such funding because it can promote the occurrence of outstanding achievements and thereby help to bring about the conditions under which every citizen can be warranted in feeling a strong sense of self-respect. Such a rationale will be designated here as “aspirational perfectionism.” Naturally, the tenor of aspirational perfectionism would be especially plain in policies that establish competitions and prizes for excellence in the arts. However, for the purpose of sharpening the contrast between aspirational perfectionism and edificatory perfectionism, this article focuses on subventions disbursed by a system of governance to enable the producers or organizers of artistic events to price their tickets at affordable levels. Subsidies so aimed can indeed sensibly figure among the techniques plied by a system of governance in pursuit of the objectives of aspirational perfectionism.

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