From Fictions and Aggregates to Real Entities in the Theory of the Firm

This document is the Accepted Manuscript version of the following article: David Gindis, 'From fictions and aggregates to real entities in the theory of the firm', Journal of Institutional Economics (2009), 5: 1, 25–46, doi:10.1017/S1744137408001203. COPYRIGHT: © The JOIE Foundation 2009.According to the dominant ‘nexus of contracts’ and ‘collection of assets’ views of the firm, the firm is a either a fiction or an aggregate. Although legal personality is important in both accounts, everything is said to be achieved by private contract alone and the law’s role in creating legal entity status is dismissed. The paper challenges both these aspects by reconsidering an alternative ‘real entity theory’ that dominated debates at the turn of the twentieth century. This forgotten view holds that the firm is neither a fiction nor an aggregate but a real entity, and underlines the creation of legal entity status as a fundamental role of the law. The paper discusses this view’s ontological and legal insights, clarifies the proposition that the firm is a real entity, and proposes it as a starting point for a theory of the firm.Peer reviewe

On the Origins, Meaning and Influence of Jensen and Meckling's Definition of the Firm

Jensen and Meckling’s 1976 definition of the firm as a legal fiction which serves as a nexus for contracts between individuals sits well with the Coasean narrative on the firm while at the same time being at odds with it. Available interviews with Jensen shed little light on the origins and meaning of this unusual definition. The paper shows how the definition captured, and was a response to, the American socio-political context of the early and mid-1970s, and traces how Jensen and Meckling employed it once they themselves got immersed in the public debate about corporate responsibility and regulation in the late 1970s and early 1980s. It also considers Jensen and Meckling’s place in the literature on the economics of corporate law developed mostly in the 1980s

On the Origins, Meaning and Influence of Jensen and Meckling's Definition of the Firm

© Oxford University Press 2020. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited.Jensen and Meckling’s 1976 definition of the firm as a legal fiction which serves as a nexus of contracts between individuals sits well with the Coasean narrative on the firm while at the same time being at odds with it. Available interviews with Jensen shed little light on the origins and meaning of this unusual definition. The article shows how the definition captured, and was a response to, the American socio-political context of the first half of the 1970s, and traces how Jensen and Meckling employed it once they themselves got immersed in the public debate about corporate regulation in the late 1970s. It also briefly considers Jensen and Meckling’s place in the literature on the economics of corporate law developed in the 1980s.Peer reviewe

Institutions and Evolution of Capitalism in Geoff Hodgson’s Work

This article is the introductory chapter to a festschrift in honour of Geoff Hodgson. In work spanning four decades, Geoff Hodgson has made many path-breaking contributions to institutional economics, evolutionary economics, economic methodology, the history of economic thought and social theory more broadly. Hodgson’s reputation as a prolific and important writer, whose work transcends traditional disciplinary boundaries, is matched by his credentials as an academic entrepreneur, whose involvement in the formation of two international scholarly societies and the foundation of the Journal of Institutional Economics has expanded the opportunities for constructive dialogue among social scientists. To celebrate Hodgon’s fantastic career, this volume brings together 19 original contributions by world-leading scholars in specific areas that have played a significant role in influencing Hodgson’s thinking or represent key debates to which he has contributed. The chapter introduces these contributions, and summarizes a conversation with Hodgson that is also included in the volume

What is a Firm? A Reply to Jean-Philippe Robé

© The Author(s), 2021. Published by Cambridge University Press on behalf of Millennium Economics Ltd. This is the accepted manuscript version of an article which has been published in final form at https://doi.org/10.1017/S1744137421000369In 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 criticizes our definition of firms in terms of legally recognized capacities on the grounds that it does not take the distinction seriously enough. He argues that firms are not legally recognized 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.Peer reviewe

Conceptualizing the Business Corporation: Insights from History

© 2020 Cambridge University Press. This paper has been accepted for publication and will appear in a revised form, subsequent to peer-review and/or editorial input by Cambridge University Press. This manuscript is made available under the terms of the Creative Commons Non-Commercial No-Derivatives License (CC-BY-NC-ND). For further information please see: https://creativecommons.org/licenses/by-nc-nd/4.0/The purpose of this symposium is to shed light on the genealogy of the idea of a business corporation, an economic institution which has long been regarded with a mixture of awe and apprehension. Each of the four original contributions addresses the history of some of its key features. In the process, each contributor reveals some of the insights that history has to teach us regarding the central concepts that inform contemporary debates about the nature of the corporation, the contours of the corporation’s purpose, the sources of corporate power, the functions of corporate law, the duties of directors, the status of shareholders, and the legitimacy of corporate rights.Peer reviewe

Legal Institutionalism: Capitalism and the Constitutive Role of Law

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies

The Corporate Baby in the Bathwater: Why Proposals to Abolish Corporate Personhood Are Misguided

The fear that business corporations have claimed unwarranted constitutional protections which have entrenched corporate power has produced a broad social movement demanding that constitutional rights be restricted to human beings and corporate personhood be abolished. We develop a critique of these proposals organized around the three salient rationales we identify in the accompanying narrative, which we argue reflect a narrow focus on large business corporations, a misunderstanding of the legal concept of personhood, and a failure to distinguish different kinds of constitutional rights and the reasons for assigning them. Corporate personhood and corporate constitutional rights are not problematic per se once these notions are decoupled from biological, metaphysical or moral considerations. The real challenge is that we need a principled way of thinking about the priority of human over corporate persons which does not reduce the efficacy of corporate institutions or harm liberal democracies

Not by contract alone: The contractarian theory of the corporation and the paradox of implied terms

Contractarians view the corporation as a nexus of contracts, constituted by the express or implied consent of each party to or contracting with it. Strong-form contractarianism takes this claim literally and holds that a corporation can be created and sustained by contract alone, thanks notably to the courts’ supportive gap-filling role. We argue that this view is undermined by the way courts actually treat implied terms. While courts do attempt to fill gaps and hold parties to their bargains, they do not typically manufacture counterfactual consent by resorting to the hypothetical bargain logic of contractarianism. Even under the most flexible form of contract law, the common law contract, the capacity of courts to imply third-party obligations in multi-party contracts is highly limited. This makes the contractarian reliance on contract and the courts to construct the complex set of multi-party obligations that make up the corporate form implausible