Melbourne Law School - Research Publications
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ItemReconstituting the Contemporary Corporation through Ecologically Responsive Regulation(Thomson Reuters (Professional), 2022)Corporate governance and regulation comprise two legal frameworks that operate together from, respectively, the inside out of the corporation and the outside in, to shape business conduct. This article critically analyses two different ways in which corporate governance and business regulation intersect. We argue that both fall short of addressing the ecological and social harms generated by business. The first intersection combines shareholder primacy with domain specific regulation. The second combines a stakeholder model of corporate governance with responsive regulation. Yet, there are signs that a third “ecologically responsive” intersection may emerge to shape business practice in light of the ecological crises we currently face. We see potential for this approach in recent proposals to reform corporate governance to encourage purposive, problem-focused corporations together with greater responsiveness and multiple business forms. To achieve this potential, though, requires a radical re-conceptualisation of regulation towards an “ecologically responsive” approach.
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ItemAn Ecological Approach to Regulatory Studies?(Wiley-Blackwell Publishing, 2018)Regulatory studies has been mainly occupied with addressing the social and economic crises of contemporary capitalism through instrumentally and responsively rational approaches. This article asks how regulatory scholarship can better respond to the ecological crisis now facing our world and our governance systems alongside social and economic crises. There are both possibilities and problems with instrumentally rational regulatory approaches that see human ecological impact as an externality or market failure and socio-legal approaches to regulatory studies that emphasize the need to attend to the social and political aspects of regulation using a responsively rational approach. A third big shift towards an ecologically rational approach to regulatory studies is needed to comprehend our embeddedness within ecological systems. An ecologically rational approach also calls for an understanding of how multiple, diverse ways of sustainable being can intersect with and challenge current regulatory regimes dominated by an instrumentally rational approach.
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ItemThe Promise of Ecological Regulation: The Case of Intensive Meat(American Bar Association, 2018)Eating less intensive meat is a solution to many problems: to human and ecological health and to the intense cruelty visited upon the millions of intensively bred animals across the globe. This Article outlines the contribution regulation makes to this problem and how it might be part of the solution. It begins by summarizing why intensive meat production generates so many problems that cut across regulatory domains. It then shows how current forms of regulation fail to grapple with the intersecting harms generated by intensive meat, highlighting the need for an ecological makeover for regulation itself. Further, regulation, as an instrumental form of law and policy implementation, neglects the interconnected challenges of the whole system. Regulatory scholarship, in the form of responsive regulation, provides ways to overcome at least some of the social aspects of regulatory failure. Yet the Article shows, drawing on two brief case examples highlighting an instrumental and responsive regulatory approach, that the ecological weakness of regulation is often overlooked. Finally, the Article teases out the characteristics of ecologically responsive regulation that can contribute to lowering meat consumption and then examines nascent regulatory tools and strategies that could be refashioned to encourage a shift towards an ecologically rich and socially resilient future.
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ItemMaking Cartel Conduct Criminal: A Case Study of Ambiguity in Controlling Business Behaviour(SAGE PUBLICATIONS LTD, 2009-08)This article explores the regulation of cartel conduct in Australia focusing, in particular, on the recent decision to criminalise so-called ‘hard-core’ cartels. It illuminates three interdependent ambiguities in regulating such conduct: economic, moral and legal. The case study is drawn on to highlight the challenges for the criminal law in attempting to resolve such ambiguities or tensions as they arise in the regulation of business behaviour generally.We argue that such challenges exist because the ambiguities reflect broader shifts taking place on an ongoing basis in economic policy, political ideology and social norms in Australian society.