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Toward Fair Gainsharing and a Quality Workplace for Employees: How a Reconceived Compensation Committee Might Help Make Corporations More Responsible Employers and Restore Faith in American Capitalism
Get PDFIn the three decades after World War II, workers and stockholders shared equitably in the nation’s growing wealth. But over the last several decades, this fair gainsharing has diminished as the power of the stock market, in the form of institutional investors, has grown as the comparative voice and leverage of workers has declined. As a result of these and other factors, a much greater share of the gains from increased corporate profitability and productivity has gone to stockholders and top management, on the one hand, and much less to employees, on the other. Contributing to this divide has been a push to tie top management pay to total stockholder return and to create incentives for management to deliver returns to stockholders, even if that requires decreasing the share that the workers primarily responsible for corporate success receive. The resulting economic insecurity and inequality have caused demands for serious change in corporate governance to give greater weight to the interests of workers. In this article, we focus on one practical way to move toward that worthy goal: reconceiving the compensation committee. A reconceived compensation committee would focus on the company’s entire workforce — not just senior management — and have the responsibility for overseeing management’s implementation of an effective system to compensate workers fairly, ensuring they receive a fair share when corporate productivity and profitability increase, and analyzing what allocation of compensation within the company’s workforce would provide the greatest motivation to encourage corporate success. To accomplish this, compensation committees would be expected to understand the nation’s, the industry’s, and the company’s traditional gainsharing practices among workers, stockholders, and top management and develop and implement a corporate strategy to ensure that gainsharing is equitable. By doing so, compensation committees would also be able to more rationally set top executive compensation and establish metrics for top management and key personnel involved in gatekeeping functions that are tied to good EESG practices and not just to stock price. The reconceived compensation committee should also be the committee charged with compliance and EESG responsibilities in the areas most important to workers, including not only worker pay and benefits but also safety, racial and gender equality, sexual harassment and inclusion, and training and promotion policies. Not only that, the reconceived compensation committee should monitor company practices in its supply chain to ensure that the company’s adopted policies regarding fair treatment of workers extend to workers employed by company contractors. By this evolutionary means that builds on the existing American corporate governance system, important strides can be taken toward making our capitalist system work better for the people most critical to its success: workers
The Future of Disclosure: ESG, Common Ownership, and Systematic Risk
Get PDFThe U.S. securities markets have recently undergone (or are undergoing) three fundamental transitions: (1) institutionalization (with the result that institutional investors now dominate both trading and stock ownership); (2) extraordinary ownership concentration (with the consequence that the three largest U.S. institutional investors now hold 20% and vote 25% of the shares in S&P 500 companies); and (3) the introduction of ESG disclosures (which process has been driven in the U.S. by pressure from large institutional investors). In light of these transitions, how should disclosure policy change? Do institutions and retail investors have the same or different disclosure needs? Why are large institutions pressing for increased ESG disclosures?
This Article will focus on the desire of institutions for greater ESG disclosures and suggest that two reasons underlie this demand for more information: (1) ESG disclosures overlap substantially with systematic risk, which is the primary concern of diversified investors; and (2) high common ownership enables institutions to take collective action to curb externalities caused by portfolio firms, so long as the gains to their portfolio from such action exceed the losses caused to the externality-creating firms. This transition to a portfolio-wide perspective (both in voting and investment decisions) has significant implications but also is likely to provoke political controversy. In its final hours, the Trump Administration adopted new rules that discourage voting based on ESG criteria and thus by extension chill ESG investing. This controversy will continue.
As more institutions shift to portfolio-wide decision making, there is an optimistic upside: externalities may be curbed by collective shareholder action. For entirely rational reasons, the new “universal” shareholders who now dominate the market will resist even large public companies who might seek to impose externalities on other companies. Owning the market, the “universal” shareholder will protect the market. Still, this process of resistance may produce frictions, and the disclosure needs of individual investors and institutional investors will increasingly diverge. Of course, not all institutional investors are indexed or even diversified, but those that remain undiversified (for example, hedge funds) logically have the perspective of an option-holder and favor greater risk-taking. Across the board, retail investors have different perspectives and preferences than do institutional investors.
Above all, the combination of high common ownership and institutional sensitivity to systematic risk makes disclosure a far more powerful force. Once a very good disinfectant, it may now be developing a laser-like power to effect significant social change
Mine! How the Hidden Rules of Ownership Control Our Lives
No full textA hidden set of rules governs who owns what – explaining everything from whether you can recline your airplane seat to why HBO lets you borrow a password illegally – and in this lively and entertaining guide, two acclaimed law professors reveal how things become “mine.”
“Mine” is one of the first words babies learn. By the time we grow up, the idea of ownership seems natural, whether buying a cup of coffee or a house. But who controls the space behind your airplane seat: you reclining or the squished laptop user behind? Why is plagiarism wrong, but it’s okay to knock-off a recipe or a dress design? And after a snowstorm, why does a chair in the street hold your parking space in Chicago, but in New York you lose the space and the chair?
Mine! explains these puzzles and many more. Surprisingly, there are just six simple stories that everyone uses to claim everything. Owners choose the story that steers us to do what they want. But we can always pick a different story. This is true not just for airplane seats, but also for battles over digital privacy, climate change, and wealth inequality. As Michael Heller and James Salzman show – in the spirited style of Freakonomics, Nudge, and Predictably Irrational – ownership is always up for grabs.https://scholarship.law.columbia.edu/books/1295/thumbnail.jp
Anti-Modalities
Get PDFConstitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of constitutional law and to investigate their implications.
The anti-modalities both stabilize and undermine the modalities. On the one hand, they work in tandem to ensure that constitutional interpretation remains a distinctive legal enterprise. The two argument bundles are in this sense mutually reinforcing, even co-constitutive. On the other hand, by ruling out various important categories of reasoning – from general moral theory to emotional judgment to many cost-benefit calculations – the anti-modalities put continuous pressure on the modalities to accommodate such reasoning in adulterated forms, or else insist on a long distance between the inputs into supreme law and the concerns that most people care about. We call this distance constitutional law’s “resonance gap.” Such a gap arises in all areas of law, but it is especially pronounced in the constitutional realm.
Although the anti-modalities play a critical role in preserving the law/politics distinction, they have deleterious consequences for each side of that line. The best response, this Article suggests, is not necessarily to narrow the resonance gap but rather to narrow the domain of constitutional law. If constitutional argument must exclude (or purport to exclude) vital modes of reasoning, we might worry less about refining its grammar and more about restricting its reach
Guide on Incentives for Responsible Investment in Agriculture and Food Systems
Get PDFTo support implementation of the Principles for Responsible Investment in Agriculture and Food Systems (CFS RAI), CCSI has developed resources for governments and other stakeholders in partnership with the Food and Agriculture Organisation of the United Nations (FAO).
This work includes an online course on creating an enabling environment for responsible investment in agriculture and food systems. The course is freely available, accessible online and available for download. Part I highlights the features and key players of an enabling environment that promotes responsible investment in agriculture and food security. Part II addresses multi-stakeholder engagement in the design of legal and institutional frameworks that govern investment.
CCSI has also developed a Guide on Incentives for Responsible Investment in Agriculture and Food Systems. The Guide aims to provide policymakers with guidance on how investment incentives can be used to enhance responsible investment in agriculture and food systems--including by noting when incentives should not be used. It offers practical guidance on how to design, implement, monitor, and evaluate investment incentives that are aligned with the CFS RAI principles
Foucault’s Keystone: \u3cem\u3eConfessions of the Flesh\u3c/em\u3e
Get PDFThe fourth and final volume of The History of Sexuality offers the keystone to Michel Foucault’s critique of Western neoliberal societies. Confessions of the Flesh provides the heretofore missing link that ties Foucault’s late writings on subjectivity to his earlier critique of power. Foucault identifies in Augustine’s treatment of marital sexual relations the moment of birth of the modern legal actor and of the legalization of social relations. With the appearance of the modern legal subject, Foucault’s critique of modern Western societies is complete: it is now possible to see how the later emergence of an all-knowing homo oeconomicus strips the State of knowledge and thus deals a fatal blow to its legitimacy. The appearance of both the modern legal actor and homo oeconomicus makes it possible to fold the entire four-volume History of Sexuality back into Foucault’s earlier critique of punitive and biopolitical power. And it now challenges us to interrogate how we, contemporary subjects, are shaped in such a way as to implicate ourselves — both willingly and unwittingly — in the social order within which we find ourselves and that, through the interaction of knowledge-power-subjectivity, we reproduce
Advanced Introduction to Landmark Criminal Cases
No full textThis engaging and accessible book focuses on high-profile criminal trials and examines the strategy of the lawyers, the reasons for conviction or acquittal, as well as the social importance of these famous cases.
Key features include: An in-depth examination of cases that are described only superficially in the media Comparative analysis of headline crimes and the evolving issues of crime, punishment and justice Detailed exploration of 11 landmark criminal cases including the trials of Amanda Knox, Mike Tyson and O.J. Simpson.
The Advanced Introduction to Landmark Criminal Cases will be a key resource for students and scholars of criminal law and justice. It will also make an interesting read for lawyers and those interested in the famous trials of the last century.https://scholarship.law.columbia.edu/books/1321/thumbnail.jp
Next Mayor Will Inherit Job of Implementing 2019 Law Setting Building Emissions Caps
Get PDFWhoever becomes New York City’s next Mayor will need to pivot quickly to implementing a collection of laws adopted in 2019 and bundled together as the Climate Mobilization Act. These laws are designed to help reduce greenhouse gas emissions in New York City by 40% below 2005 levels by 2030 and 80% by 2050. Because 70% of the greenhouse gases emitted in New York City are generated by how New Yorkers heat, light and power buildings, the Climate Mobilization Act includes Local Laws 92 and 94, which require that new buildings or buildings undergoing major roof renovations include solar panels and/or green roofs; Local Law 95, which requires that buildings conduct annual energy efficiency reviews and publicly post their scores as a letter grade; and Local Law 96, which establishes the New York City Sustainable Energy Loan program
How Biden’s Environmental Policies Will Affect New York
Get PDFAs this column has previously discussed, President Joe Biden’s environmental policies are a sharp reversal of those of former President Donald Trump. Today’s column spotlights how this change will affect New York state and New York City
Design Justice in Municipal Criminal Regulation
Get PDFThis article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and finding clear and shared understandings of spatial experiences. The final section applies a design justice framework to municipal criminal regulation to create fundamental change. By implementing design justice principles, marginalized communities can strike down oppressive municipal criminal regulation that maintains the social hierarchy, and rally supporters from within and outside of the system to design an inclusive plan for change