SLS Annual Seminar 2022: The Origins of Company Law

November 11th and 12th 2022

Victoria Barnes, Jonathan Hardman and Sarah Wilson

University of York

I

Aims and scope

This relationship between law and capitalism is now being recast with the key tenets of company law being questioned. Politicians, policy-makers and members of the public alike debate the virtues of the past. In 2019, then democratic presidential candidate, Elizabeth Warren proposed to introduce a system of corporate chartering. This would require big businesses to apply to the federal government for corporate rights and mark a return to the system of company regulation of the seventeenth and eighteenth centuries.[1] Boris Johnson has recently sought the advice of business leaders for his proposal to undertake regulatory change and undo the changes brought about over the course of the last half century, through the United Kingdom’s membership in the European Union.[2] Regulation of the corporate form is seen as a logical way of shaping company behaviour, but age-old methods are preferred over novel or untested ideas.

The time is ripe to revaluate the history of company law and for business organisations, more generally. This workshop brings together Anglo-American scholarship that can inform debates about the past which are taking place in the present. Historical research is essential here not only because it provides a more informed view about the present legal rules, but also because it corrects misunderstandings and misapprehensions about the past. This workshop examines the historical origins of company law to show how this body of law developed to become the rules which we are now familiar with. This involves showcasing antecedents of present debates, revealing regulatory lessons from previous legal regimes, instances of path dependency, unpicking pivotal legal events and explaining drivers for legal change. The knowledge gathered about the evolution of company law from this workshop will inform the law-making and policy-making agenda.

Company law is one such topic that has hitherto lacked systemic historical attention and been under theorised. This is in part due to the fractured nature of legal academic work in company law but also the confines of disciplinary scholarship. This workshop gathers those leading scholars working in a doctrinal and socio-legal method by inviting leading legal academics and lawyers as well as those without a legal background, such as economists, economic historians, business historians, sociologists and management scholars working on related themes. These discussions will spark innovative debates about doctrinal evolution in company law and also about the uses and abuses of the past in contemporary debates.[3] This edited collection will offer guidance, best practice and support that will help those to researching or using history to understand law.

For more info: please contact infor@globalcorporatelaw.com

Speakers:

Victoria Barnes (Max Planck Institute, Frankfurt am Main, Germany) and Sally Wheeler (Australia National University, Australia)

When did company law begin?

Lorraine Talbot (University of Birmingham, United Kingdom)

Corporations, charters, the state and value extraction

Jonathan Hardman (University of Edinburgh, United Kingdom)

Trajectory v origin: Argumentation structures in the use of historical analysis for normative corporate law

Marc Moore (University College London, United Kingdom)

Salomon and the spectre of anti-Semitism

Robert Thompson (Georgetown University, United States)

What corporate law understands about the corporation that the United States Supreme Court does not

Susan Watson (University of Auckland, New Zealand)

Why Salomon was right but may still be wrong: The central significance of separate legal entity

Eric Hilt (Wellesley College, United States)

Early nineteenth century corporations and the public purpose

Naomi Lamoreaux (Yale University, University of Michigan, and NBER, United States)

Three regimes: Corporations and regulation in United States history

Paddy Ireland (University of Bristol, United Kingdom)

The right to repose in peace: Ultra Vires and the making of modern company law

Neil Rollings (University of Glasgow, United Kingdom) 

A few pike in a trout river? Hostile take-over bids and dividend restraint: the debate in government in the 1950s

Ron Harris (Tel Aviv University, Israel)

The corporate share: From membership, to financial interest to contractual design

Brenda Hannigan (University of Southampton, United Kingdom)

The evolution of shareholder rights and remedies 1948-2022

Andrew Johnston (University of Warwick, United Kingdom)

Constructing shareholder primacy

Jennifer Trinks (Max Planck Institute, Hamburg, Germany)

The origins of the principle of inseparability of voting rights from shares

[1] https://www.washingtonpost.com/news/powerpost/paloma/the-finance-202/2018/08/16/the-finance-202-elizabeth-warren-takes-on-corporate-giants-as-she-lays-2020-marker/5b746bc91b326b7234392946/.

[2] https://www.ft.com/content/e2e5e8a9-f02d-4951-b175-06d25dcb23fc.

[3] This literature has not yet been integrated into legal scholarship. The seminal methodological text in history is: Margaret MacMillan, The Uses and Abuses of History (Profile Books 2010). More recently, economic historians have begun exploring lessons from history or the memorialisation of past events as a method of learning. See Joel Mokyr, ‘The Past and the Future of Innovation: Some Lessons from Economic History’ (2018) 69 Explorations in Economic History 13; Youssef Cassis and Catherine R Schenk (eds), Remembering and Learning from Financial Crises (Oxford University Press 2021); Mary A O’Sullivan, ‘History as Heresy: Unlearning the Lessons of Economic Orthodoxy’ n/a The Economic History Review <https://onlinelibrary.wiley.com/doi/abs/10.1111/ehr.13117> accessed 7 January 2022. Other business and economic history challenge the use of the past and see the use of history more cynically as a story that can be abused. See Christina Lubinski, ‘From “History as Told” to “History as Experienced”: Contextualizing the Uses of the Past’ (2018) 39 Organization Studies 1785; R Daniel Wadhwani and others, ‘History as Organizing: Uses of the Past in Organization Studies’ (2018) 39 Organization Studies 1663; Victoria Barnes and Lucy Newton, ‘Visualizing Organizational Identity: The History of a Capitalist Enterprise’ (2018) 13 Management & Organizational History 24.

The Global Corporate Law brings together those exploring the company regulation from around the globe. In the present era of de-globalisation, policy-makers have been either slow, reluctant or unwilling to recognise the importance of global exchanges. Following the disruption to supply chains in the wake of Brexit and now the conflict in Ukraine, there is now widespread acknowledgement that commerce is global in nature. Yet, the international commercial exchanges are not themselves new. Companies have long looked to new markets to expand and entrepreneurs have built new customer bases overseas since time immemorial. Traders have often sought finance, agents or intermediaries to facilitate the sale of goods. Law, of course, influences the terms of commercial transactions at all levels.