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Reshaping Markets: Economic Governance, the Global Financial Crisis and Liberal Utopia

I Crisis and normality in transnational market regulationThe central problems of Marx’s economics and the nature of market regulationIntroductionThe meaning of ‘regulation’Left-wing criticism of the free marketEarly British left-wing criticism of the labour theory of valueShaw and Keynes on MarxWicksteed on MarxThe critique of capitalism in light of the labour theorySupply and demandCompetitionPlanningConclusion: the form of valueBibliographyContract law, securitization and the pre-crisis transformation of bankingIntroductionLiberal contract law and the development of the securitization marketThe historical development of securitizationThe laissez-faire institution of contract lawContract law and the pre-crisis speed-up of securitization marketsSecuritization and the rise of market-based bankingSecuritization and the eclipse of the post-World War II banking regimeThe rise of market-based banking and its consequencesMarket-based banking and the problem of the “coordinated market economy ”ConclusionReferences‘Inside’ and ‘outside’ the firm: corporate law and contract governance as regulatory theoriesIntroductionStudying the corporationThe lawyer’s mindset and the new twist in law and economicsThe promises (and pitfalls) of contract governanceComing full circle? The corporation and contract governanceThe conundrum of agency in contemporary contract and corporate theoryBeyond public versus private: the promise of relational contract theory for a new theory of the firmThe many bases of contractsConclusionReferencesII Austerity woes: trials and tribulations of debt The Greek crisis: a critical narrativePrologue: the biggest sovereign insolvency in historyFoucault’s ‘tool box’Crisis and reformAn event and the quest for a single causeThe use of dataWhat did really happen?The years 1990-2005: availability of cheap labour and profit marginsGreece in the Eurozone: living with a strong currencyGovernance issues within Greece and the EurozoneThe ‘inefficient’ markets: eurozone or euro country?Epilogue: The shaping of a new paradigmReferencesThe biopolitics of debt-economy: market order, ascetic and hedonistic moralityAccumulation regimes, hedonism and asceticismThe emerging of a debt-economyThe morality of debt relations as power relationsSovereign debt restructuring and morality: citizens’ asceticismThe German experience: Hartz-reforms and invisible povertyCooperation and workers’ asceticismFrom consumers’ hedonism to communitarianismReferencesCredit contracts and the political economy of debtIntroductionThree stages of a decline? A historical political economy of debtThe social emdeddedness of debtThe Great Transformation Part I: credit contracts and the regulatory stateThe Great Transformation Part II: trading risksMaking risk ‘disappear’: the example of CDS tradingMaking the law more risk-sensitive: the example of close-out nettingA shift from normative to cognitive expectation structures?Reembedding debt? The constitution of a political economy beyond the stateISDAs development and functioningISDA’s part in the cognitivation offinancial marketsThe evolution of ISDA’s position in the derivatives marketInternal centralisationExternal lobbying - the example of close-out nettingReembedding debt?Is there a reembedding of debt at all?Are ISDA s standards democratically legitimate?Societal regulatory authorities and the nation-state - a complementary relationshipConclusionReferencesIII Reforming finance: systemic risk and accountabilityWhy manager liability fails at controlling systemic riskIntroductionManager liability: not strict but fault-basedStrict liability is inconsistent with managers ’ role as agentsIncentive distortions from strict liabilityDefining the standard of careObjective: limiting the probability of bank insolvencyDefining the standard ex anteDefining the standard ex postThe consequences of uncertain care standardsThe case for restricting manager liabilityObjectionsConclusionReferencesHow special are they? Targeting systemic risk by regulating shadow bankingIntroductionThe rationale underpinning current regulatory initiatives to cover non-bank credit intermediationIn search of an operative definitionGoals of banking regulation revisited: substanceSynthesising the debatesLegislators’ and supervisors’ ‘formalist’ implementation of the policy prescriptionsSecuritisation and off-balance sheet conduitsMutual money market funds and repoEnhancing prudential regulation’s assertiveness in a normative approachThe idea of an internal solution without permanent law reformActual and alleged limits of a normative approachConclusionReferencesFixing Finance 2.0IntroductionToo big to fail banks are still a concernWhy is “too big to fail" a problem?Relevant provisions of Dodd-FrankExecutive compensationWhy the gaps?Culture, organizational psychology and regulationProject finance as a model ofpublic/private co-regulationDutch Central Bank psychological interventionsA co-regulation modelConclusionReferencesRegulating financial markets: what we might learn from sovereign wealth fundsIntroductionThe operation of the Norwegian Sovereign Wealth Fund: private actor, international actor, and sovereignOrganization of the NSWFResponsible investing and active ownershipJuridification of investment: the emerging jurisprudence of the ethics councilThe NSWF ethical guidelinesOperationalizing the Ethics Guidelines - the structure and functions of the NSWF Council on EthicsCooperative and inter-systemic governance: its strength and fragilityConclusionReferencesIV Transforming contractSustainable contracting: How standard terms could govern marketsTwo problems: limits to growth and limits to lawOne answer: sustainable contracts by standard termsWhy global sustainability terms could helpEconomic mechanism designSystemic structural couplingDeliberative passageCultural corporate mythConstitutional fragmentWhat adequate terms of sustainability could beNatural (ecological) sustainability standardsSocial (cultural) sustainability standardsEconomic sustainability standardsProcedural (political sustainability) standardsHow sustainable contracting could (really) workMyth production by classification, labelling and certificationStructural couplings to domestic and international lawDeliberative hubs for local and global stakeholdersEconomic incentives through graded interest rates and pricesConstitutionalising sustainability by judicial controlThe vision: sustainable private self-governanceReferencesAnti-discrimination law and social policy-makingOld and new questions in modern anti-discrimination lawEqual treatment in the construction of a common marketTowards a new approach in EU anti-discrimination law?The limits and shortcomings of anti-discrimination law as an instrument of social policy-makingReferencesEuropean or American style? Cultures of contract regulation*IntroductionThe American commentary in contextThe neo-classical critique of the CESLThe CESL and behavioural law and economicsThe burden of proof: origins and questionsPrivate law, redistribution and behavioural inquiryReferencesV Conceptual Utopia: the market after the market The Truth of the marketPresentation and main ideasThe “truth” of the market and some of its implicationsHow do markets tell the truth? Between competition and efficiencyFinance and mathematical economicsWhich “free market” after the crisis? Truths and untruthsFree markets and state capitalismGlobal markets, governance, and new institutional trendsReferencesEpilogue: the power of law to reshape markets
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