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Notes
1 J Landis, The Administrative Process (1938); J O'Brien, The Triumph, Tragedy and Lost Legacy of James M Landis (Oxford, Bloomsbury, 2014).
2 C Hood, H Rothstein and R Baldwin, The Government of Risk: Understanding Risk Regulation Regimes (2001), 8 (describing a regulatory regime as a “complex of institutional [physical and social] geography, rules, practice and animating ideas that are associated with the regulation of a particular risk or hazard”).
3 R Baldwin, C Scott and C Hood, Understanding Regulation (1998), 4.
4 See W Scott, “Lords of the Dance: Professionals as Institutional Agents” (2008) 29 Organization Studies 219.
5 For a historical account, see V Zelizer, Morals and Markets: The Development of Life Insurance in the United States (1979). A similar dynamic applies contemporarily in the emergence of financial derivatives. A social network comprising former regulators, academics and leading practitioners changed perceptions of the moral utility of these options from a dubious gamble to a respected financial instrument; see D MacKenzie and Y Millo, “Constructing a Market, Performing Theory: The Historical Sociology of a Financial Derivatives Exchange” (2003) 109 American Journal of Sociology 107.
6 This process can generate a powerful ideological paradigm, see J Nash, “Framing Effects and Regulatory Choice” (2006) 82 Notre Dame Law Review 313.
7 W Streeck and P Schmitter, “Community, Market, State – and Associations? The Prospective Contribution of Interest Governance to Social Order”, in W Streeck and P Schmitter (eds), Private Interest Government: Beyond Market and State (Beverly Hills, CA, Sage, 1985), 1–29.
8 See FA Hayek, The Road to Serfdom (1944), 40 (“To create conditions in which competition will be as effective as possible, to supplement it where it cannot be made effective … provide indeed a wide and unquestioned field for state activity. In no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continuously adjusted legal framework as much as any other.”); see also J Schumpeter, Capitalism, Socialism and Democracy (1942), 137 (“No social system can work in which everyone is supposed to be guided by nothing except his short-term utilitarian ends … the stock exchange is a poor substitute for the Holy Grail.”).
9 For a trajectory of corporate governance reform, see K Keasey, H Short and M Wright, “The Development of Corporate Governance Codes in the United Kingdom”, in K Keasey, S Thompson and M Wright (eds), Corporate Governance: Accountability, Enterprise and International Comparisons (2005), 21; for a global perspective, see generally J Hill, “Evolving ‘Rules of the Game' in Corporate Governance Reform”, in J O'Brien (ed), Private Equity, Corporate Governance and the Dynamics of Capital Market Regulation (2007), 29–54.
10 G Hardin, “The Tragedy of the Commons” (1968) 162 Science 1243.
11 HM Treasury, Bank of England and Financial Conduct Authority, Fair and Effective Markets Review: Final Report (London, June 2015).
12 See J Kennedy, “Securities and Exchange Commission”, The Certified Public Accountant, December 1934, 722–36 (reprinting an address at Boston Chamber of Commerce, 15 November 1934).
13 The aim is to embed reflexively other-regarding imperatives; for theoretical exposition, see G Teubner, “Substantive and Reflexive Elements in Modern Law” (1983) 17 Law and Society Review 239.
14 See, for example, D MacKenzie, Material Markets: How Economic Agents Are Constructed (2009); for criticism suggesting that actor-network theory (ANT) can be rescued by paying more attention to the ideational framing, see K McGee, Bruno Latour: The Normativity of Networks (2014).
15 J Braithwaite, “Culture of Redemptive Finance”, in J O'Brien and G Gilligan (eds), Regulating Culture: Integrity, Risk and Accountability in Capital Markets (2013), 269–87, 270.
16 A Montefiore, “Integrity: A Philosopher's Introduction”, in A Montefiore and D Vines (eds), Integrity in the Public and Private Domains (1999), 10; see also JP Dobel, “Public Trusteeship: The Responsibilities of Transparency and Legacy”, in J O'Brien (ed), Governing the Corporation: Regulation and Corporate Governance in an Age of Scandal and Global Markets (2005), 317.
17 See, for example, Final Report of the National Commission on the Causes of the Financial and Economic Crisis in the United States (2011), xxii–xxiii (noting “a systemic breakdown of accountability and ethics … to pin this crisis on mortal flaws like greed and hubris would be simplistic. It was the failure to account for human weakness that is relevant to this crisis … Collectively, but certainly not unanimously, we acquiesced to or embraced a system, a set of policies and actions, that gave rise to our present predicament.”).
18 The pledge made by banking executives to greater integrity just as they were being investigated for benchmark manipulation is a particularly sharp example of the difference between stated and warranted commitment; see M Agius et al, “Financial Leaders Pledge Excellence and Integrity”, letter to the Editor, Financial Times, 29 September 2010, http://www.ft.com/intl/cms/s/0/eb26484e-cb2d-11df-95c0-00144feab49a.html?siteedition=intl#axzz3F5O2mZt9, last accessed 12 September 2015.
19 TC Arnold, “Rethinking Moral Economy” (2001) 95 American Political Science Review 85.
20 L Fortado, “Hayes Sentenced to 14 Years for Rigging Libor Rates”, Financial Times, 8 August 2015, 9.
21 T Prosser, “Regulation and Social Solidarity” (2006) 33 Journal of Law and Society 364, 372.
22 See M Dubnick and J O'Brien, “Rethinking the Obsession: Accountability and the Financial Crisis”, in M Dubnick and G Fredrickson (eds), Accountable Governance: Promises and Problems (2011), 282–301; see more generally T Nagel, “Moral Conflict and Political Legitimacy” (1987) 16 Philosophy and Public Affairs 215.
23 See A MacIntyre, “Why Are the Problems of Business Ethics Insoluble”, in B Baumin and B Friedman (eds), Moral Responsibility and the Professions (Haven Publishing, 1982), 358 (“Effectiveness in organizations is often both the product and the producer of an intense focus on a narrow range of specialized tasks which has as its counterpart blindness to other aspects of one's activity”); see also A MacIntyre, “Social Structures and Their Threats to Moral Agency” (1999) 74 Philosophy 311 (“Compartmentalization occurs when a ‘distinct sphere of social activity comes to have its own role structure governed by its own specific norms in relative independence of other such spheres. Within each sphere those norms dictate which kinds of consideration are to be treated as relevant to decision-making and which are to be excluded”: at 322).
24 As such, both are quintessential keywords meaningful in a broader and more contextualised sense than linguistic alone (a “shared body of words and meanings” so to speak that we apply in “in our most general discussions, in English, of the practices and institutions which we group as culture and society”, see W Williams, Keywords: A Vocabulary of Culture and Society (1985), 15).
25 See, for example, M Carney, “Building Real Markets for the Good of the People”, speech delivered at the Mansion House, City of London, 10 June 2015; M Carney, “Inclusive Capitalism: Creating a Sense of the Systemic”, speech delivered at the Inclusive Capitalism Conference, London, 27 May 2014; M Carney, “Rebuilding Trust in Global Banking”, speech delivered at Western University, London, Ontario, 25 February 2013.
26 British Parliamentary Commission on Banking Standards, Changing Banking for Good (2013), vol 2, paras 567–611.
27 See, for example, M Larson, The Rise of Professionalism: A Sociological Analysis (1977); E Freidson, Professionalism Reborn: Theory, Prophecy and Policy (1994). For discussion of how agents generate the need for expertise through a carving out of regulatory space, see A Abbott, The System of Professions: An Essay on the Division of Expert Labor (1988).
28 Australian Government, Best Practice Regulation Handbook (Canberra, Commonwealth of Australia, 2010); Australian Law Reform Commission Act (1996) (Cth), s 24(2)(b).
29 E Bardach and R Kagan, Going By the Book: The Problem of Regulating Unreasonableness (Philadelphia, PA, Temple University Press, 1982).
30 J Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety (1985); for application to the corporate sector, see C Parker, The Open Corporation (2002).
31 See G Rossouw and L van Vuuren, “Modes of Managing Morality: A Descriptive Model for Managing Ethics” (2003) 46 Journal of Business Ethics 389 (noting a five stage process in which corporate activity moves from “(1) immorality; (2) reactivity; (3) compliance; (4) integrity; (5) total alignment”: at 391).
32 P Jenkins, ‘The Financial World Can Look Beyond the Crisis,’ Financial Times, 13 June 2015, 11.