Swivel




















Nussbaum

Gridgrind


Using literature and philosophy to help explain and critique existing business law doctrine. Starting from Charles Dickens's Hard Times, we provide a new explanation for one of the great puzzles of existing business law doctrine, the coexistence of the strict duty of management to maximize profits and the business judgment rule, the practice of courts to review management decisions with great deference. We argue that the business judgment rule is a necessary corrective to the irrationality of the underlying duty to maximize profits. We make this argument by analogizing business law to Dickens's character of Thomas Gradgrind, who seeks to live his life according to utilitarian precepts. Gradgrind realizes over the course of the novel (and hence the title Gradgrind's Education) that he cannot truly live according to an ethic based on utilitarianism and also live out a decent life. We argue that the business judgment rule, rather than being based on institutional concerns about courts' abilities to second-guess business management, instead is explained as this more rational and humanistic conception of decision making than is the utilitarianism that forms the basis of the underlying duty to maximize profits. We also draw on Martha Nussbaum's neo-Aristotelian writings. We contend that the alternative conception of decision making to which Gradgrind is educated in is quite similar to the good Aristotelian decision making described by Nussbaum in several of her writings. Using Nussbaum's descriptions as this analytical device, we suggest that the business judgment rule is, while a necessary corrective to the irrational underlying duty, still a second best alternative insofar as it retains the duty to maximize profits as the guide post. We suggest the contours of a first-best conception of fiduciary duties within business law, one that replaces the guidepost of shareholder return with others premised on neo-Aristotelian (and Dickensonian) notions of rationality. These new fiduciary duties would include a recognition of: fairness being a metric; the priority of the particular over the general; plus the importance of non-financial factors; and the absence of the supreme stakeholder.
The more EVERYONE in this country holds on to their beliefs and nationalities,
wherever from originally, the less that these manipulators can try to make us
all the same. We dont need laws to keep us from each other, we need laws and
their backing up to keep us all safe from violence, burglary and drugs, not
victim culture laws designed to set one against another, as it suits them to see
us bicker, as again it deflects attention from the real issue of total
incompetence for enforcing law and order. Surely laws saying you must get on
with each other actually only incite more friction, I think that suits them
fine, to see us squabble, forgetting what they are up to, for now. Most of the palpably
ludicrous laws being passed are sops to the fact that they would never have got
elected without the support of many minority groups, who now want their
pound of flesh, so the rest of us
look on in amazement as we are taxed more than ever before by thieves who said
they would never raise income tax, and see it all wasted on paper shuffling
jobs to hide the true level of unemployment. Huge amounts of tax have been
raised, more than ever before, borrowing is at record levels via Mr Brown, the
genius who not only borrows more than ever recorded before but gets it 11
billion in error and has to borrow that as well. I seem to remember a solemn




















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