Here are a few gift suggestions culled from books published this year if your special someone is a lawyer who associates Modigliani and Miller with capital structure and not paintings with elongated faces and the Tropic of Cancer:
- Tamar Frankel’s The Ponzi Scheme Puzzle;
- Steve Bainbridge’s Corporate Governance after the Financial Crisis (for a point of comparison, see his former colleague Lynn Stout’s The Shareholder Value Myth: How Putting Shareholders First Harms Investors, Corporations, and the Public);
- Research Handbook on the Economics of Corporate Law, a collection edited by Claire Hill & Brett McDonnell.
Even the non-lawyers and non-academics in your life might enjoy Frank Partnoy’s Wait: The Art and Science of Delay. Of course, the target audience might never get around to buying the book.
Players and coaches from the New Orleans Saints created a system of "bounty" payments for injuring opposing players severely enough to get them removed from the game. According to ESPN:
Payments were made for plays such as interceptions and fumble recoveries. But the program also included "bounty" payments for "cart-offs," meaning that the opposing player was carried off the field, and "knockouts," meaning that the opposing player was not able to return.
Instead of talking about "putting this behind us and winning more championships in the future for our fans," shouldn't Saints owner Tom Benson be talking about getting criminal defense lawyers for his players and coaches?
Thanks to Erik Gerding for the opportunity to share some of my ideas on corporate criminal liability, Dodd-Frank, corporate influences on individual behavior and educating today's law students only three months into my new academic career. I appreciate the thoughtful and encouraging emails I received from many of you. I even received a request for an interview from the Wall Street Journal after a reporter read my two blog posts on Dodd-Frank conflicts minerals governance disclosures. We had a lengthy conversation and although I only had one quote, he did link to the Conglomerate posts and for that I am very grateful.
I plan to make this site required reading for my seminar students, and look forward to continuing to learn from you all.
Best wishes for the holiday season and new year.
Time Magazine’s “person of the year” is the “protestor.” Occupy Wall Street’s participants have generated discussion unprecedented in recent years about the role of corporations and their executives in society. The movement has influenced workers and unemployed alike around the world and has clearly shaped the political debate.
But how does a corporation really act? Doesn’t it act through its people? And do those people behave like the members of the homo economicus species acting rationally, selfishly for their greatest material advantage and without consideration about morality, ethics or other people? If so, can a corporation really have a conscience?
In her book Cultivating Conscience: How Good Laws Make Good People, Lynn Stout, a corporate and securities professor at UCLA School of Law argues that the homo economicus model does a poor job of predicting behavior within corporations. Stout takes aim at Oliver Wendell Holmes’ theory of the “bad man” (which forms the basis of homo economicus), Hobbes’ approach in Leviathan, John Stuart Mill’s theory of political economy, and those judges, law professors, regulators and policymakers who focus solely on the law and economics theory that material incentives are the only things that matter.
Citing hundreds of sociological studies that have been replicated around the world over the past fifty years, evolutionary biology, and experimental gaming theory, she concludes that people do not generally behave like the “rational maximizers” that ecomonic theory would predict. In fact other than the 1-3% of the population who are psychopaths, people are “prosocial, ” meaning that they sacrifice to follow ethical rules, or to help or avoid harming others (although interestingly in student studies, economics majors tended to be less prosocial than others).
She recommends a three-factor model for judges, regulators and legislators who want to shape human behavior:
“Unselfish prosocial behavior toward strangers, including unselfish compliance with legal and ethical rules, is triggered by social context, including especially:
(1) instructions from authority
(2) beliefs about others’ prosocial behavior; and
(3) the magnitude of the benefits to others.
Prosocial behavior declines, however, as the personal cost of acting prosocially increases.”
While she focuses on tort, contract and criminal law, her model and criticisms of the homo economicus model may be particularly helpful in the context of understanding corporate behavior. Corporations clearly influence how their people act. Professor Pamela Bucy, for example, argues that government should only be able to convict a corporation if it proves that the corporate ethos encouraged agents of the corporation to commit the criminal act. That corporate ethos results from individuals working together toward corporate goals.
Stout observes that an entire generation of business and political leaders has been taught that people only respond to material incentives, which leads to poor planning that can have devastating results by steering naturally prosocial people to toward unethical or illegal behavior. She warns against “rais[ing] the cost of conscience,” stating that “if we want people to be good, we must not tempt them to be bad.”
In her forthcoming article “Killing Conscience: The Unintended Behavioral Consequences of ‘Pay for Performance,’” she applies behavioral science to incentive based-pay. She points to the savings and loans crisis of the 80's, the recent teacher cheating scandals on standardized tests, Enron, Worldcom, the 2008 credit crisis, which stemmed in part from performance-based bonuses that tempted brokers to approve risky loans, and Bear Sterns and AIG executives who bet on risky derivatives. She disagrees with those who say that that those incentive plans were poorly designed, arguing instead that excessive reliance on even well designed ex-ante incentive plans can “snuff out” or suppress conscience and create “psycopathogenic” environments, and has done so as evidenced by “a disturbing outbreak of executive-driven corporate frauds, scandals and failures.” She further notes that the pay for performance movement has produced less than stellar improvement in the performance and profitability of most US companies.
She advocates instead for trust-based” compensation arrangements, which take into account the parties’ capacity for prosocial behavior rather than leading employees to believe that the employer rewards selfish behavior. This is especially true if that reward tempts employees to engage in fraudulent or opportunistic behavior if that is the only way to realistically achieve the performance metric.
Applying her three factor model looks like this: Does the company’s messaging tell employees that it doesn’t care about ethics? Is it rewarding other people to act in the same way? And is it signaling that there is nothing wrong with unethical behavior or that there are no victims? This theory fits in nicely with the Bucy corporate ethos paradigm described above.
Stout proposes modest, nonmaterial rewards such as greater job responsibilities, public recognition, and more reasonable cash awards based upon subjective, ex post evaluations on the employee’s performance, and cites studies indicating that most employees thrive and are more creative in environments that don’t focus on ex ante monetary incentives. She yearns for the pre 162(m) days when the tax code didn’t require corporations to tie executive pay over one million dollars to performance metrics.
Stout’s application of these behavioral science theories provide guidance that lawmakers and others may want to consider as they look at legislation to prevent or at least mitigate the next corporate scandal. She also provides food for thought for those in corporate America who want to change the dynamics and trust factors within their organizations, and by extension their employee base, shareholders and the general population.
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Massey Energy and Walmart made headlines last week for different reasons. Massey had the worst mining disaster in 40 years, killing 29 employees and entered into a nonprescution agreement with the Department of Justice. The DOJ has stated in the past that these agreements balance the interests of penalizing offending companies, compensating victims and stopping criminal conduct “without the loss of jobs, the loss of pensions, and other significant negative consequences to innocent parties who played no role in the criminal conduct, were unaware of it, or were unable to prevent it.”
Massey’s new owner Alpha Natural Resources, has agreed to pay $210 million dollars in fines to the government, compensation to the families of the deceased miners and for safety improvements (the latter may be tax-deductible). The government’s 972-page report concluded that the root cause was Massey’s “systematic, intentional and aggressive efforts” to conceal life threatening safety violations. The company maintained a doctored set of safety records for investigators, intimidated workers who complained of safety issues, warned miners when inspectors were coming (a crime), and had 370 violations. The mine had been shut down 48 times in the previous year and reopened once violations were fixed. 112 miners had had no basic safety training at all. Only one executive has been convicted of destroying documents and obstruction, and investigations on other executives are pending. However, the company itself has escaped prosecution for violations of the Mine Safety and Health Act, conspiracy or obstruction of justice. Perhaps new ownership swayed prosecutors and if Massey had its same owners, things would be different. But is this really justice? The miner’s families receiving the settlement certainly don’t think so.
Walmart announced in its 10-Q that based upon a compliance review and other sources (Dodd-Frank whistleblowers maybe?), it had informed both the SEC and DOJ that it was conducting a worldwide review of its practices to ensure that there were no violations of the Foreign Corrupt Practices Act (“FCPA”). Although no facts have come out in the Walmart case and I have no personal knowledge of the circumstances, let’s assume for the sake of this post that Walmart has a robust compliance program, which takes a risk based approach to training its two million employees in what they need to know (the greeter in Tulsa may not need in-depth training on bribery and corruption but the warehouse manager and office workers in Brazil and China do). Let’s also assume that Walmart can hire the best attorneys, investigators and consultants around, and based on their advice, chose to disclose to the government that they were conducting an internal investigation. Let’s further assume that the incidents are not widespread and may involve a few rogue managers around the world, who have chosen to ignore the training and the policies and a strong tone at the top.
As is common today, let’s also assume that depending on what they find, the company will do what every good “corporate citizen” does to avoid indictment --disclose all factual findings and underlying information of its internal investigation, waive the attorney client privilege and work product protection, fire employees, replace management, possibly cut off payment of legal fees for those under investigation, and actively participate in any government investigations of employees, competitors, agents and vendors.
Should this idealized version of Walmart be treated the same as Massey Energy? (For a great compilation of essays on the potential conflicts between the company and its employees, read Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, edited by Anthony and Rachel Barkow). Should they both be charged and face trial or should they get deferred or nonprosecution agreements for cooperation? Do these NPAs and DPAs erode our sense of justice or should there be an additional alternative for companies that have done the right thing -- an affirmative defense?
A discussion of the history of corporate criminal liability would be too detailed for this post, but in its most simplistic form, ever since the 1909 case of New York Central & Hudson River Railroad Co v. United States, companies have endured strict liability for the criminal acts of employees who were acting within the scope of their employment and who were motivated in part by an intent to benefit the corporation. As case law has evolved, companies face this liability even if the employee flouted clear rules and mandates and the company has a state of the art compliance program and corporate culture. In reality, no matter how much money, time or effort a company spends to train and inculcate values into its employees, agents and vendors, there is no guarantee that their employees will neither intentionally nor unintentionally violate the law.
The DOJ has reiterated this 1909 standard in its policy documents. And because so few corporations go to trial and instead enter into DPAs or NPAs, we don’t know whether the compliance programs in place would have led to either the potential 400% increase or 95% decrease in fines and penalties under the Federal Sentencing Guidelines because judges aren’t making those determinations. The DPAs are now providing more information about corporate compliance reporting provisions, but again, even if a company already had all of those practices in place, and a rogue group of employees ignored them, the company faces the criminal liability. The Ethical Resource Center is preparing a report in celebration of the 20th Anniversary of the Sentencing Guidelines with recommendations for the U.S. Sentencing Commission, members of Congress, the DOJ and other enforcement agencies. They are excellent and timely, but they do not go far enough.
A Massey Energy should not receive the same treatment as my idealized model corporate citizen Walmart. Instead, I agree with Larry Thompson, formerly of the DOJ and now a general counsel and others who propose an affirmative defense for an effective compliance program- not simply as possible reduction in a fine or a DPA or NPA.
While the ideal standard would require prosecutors to prove that upper management was willfully blind or negligent regarding the conduct, this proposed standard may presume corporate involvement or condonation of wrongful conduct but allow the company to rebut this presumption with a defense.
In the past decade, companies drastically changed their antiharassment programs after the Supreme Court cases of Fargher and Ellerth allowed for an affirmative defense. The UK Bribery Act also allows for an affirmative defense for implementing “adequate procedures” with six principles of bribery prevention. Interestingly, they too are looking at instituting DPAs.
I would limit a proposed affirmative defense to when nonpolicymaking employees have committed misconduct contrary to law, policy or management instructions. If the company adopted or ratified the conduct and/or did not correct it, it could not avail itself of the defense. The company would have to prove by a preponderance of the evidence that: it has implemented a state of the art program approved and overseen by the board or a designated committee; clearly communicated the corporation’s intent to comply with the law and announced employee penalties for prohibited acts; met or exceeded industry standards and norms; is periodically audited and benchmarked by a third party and has made modifications if necessary; has financial incentives for lawful and penalties unlawful behavior; elevated the compliance officer to report directly to the board or a designated committee (a suggestion rejected in the 2010 amendments to the Sentencing Guidelines); has consistently applied anti-retaliation policies for whistleblowers; voluntarily reported wrongdoing to authorities when appropriate; and of course taken into account what the DOJ has required of offending companies and which is now becoming the standard. The court should have to rule on the defense pre-trial.
Instead of serving as vicarious or deputized prosecutors, under this proposed standard, a corporation’s cooperation with prosecutors will be based on factors more within the corporation's control,rather than the catch-22 they currently face where if employees are guilty, there is no defense. And if the employees are guilty, this would not preclude the government from prosecuting them, as they should.
Responsible corporations now spend significant sums on compliance programs and the reward is simply a reduction in a fine for conduct for which it is vicariously liable and which its policies strictly prohibited. A defense will promote earlier detection and remedying of the wrongdoing, reduce government expenditures, provide more assurance to investors and regulators, allow the government to focus on companies that don’t have effective compliance program, and most important provide incentives for companies to invest in more state of the art programs rather than a cosmetic, check the box initiative because the standard would be higher than what is currently Sentencing Guidelines.
Perhaps only a small number of companies may be able to prevail with this defense. Frankly, corporations won’t want to bear the risk of a trial, but they will at least have a better negotiating position with prosecutors. Moreover, companies that try in good faith to do the right thing won’t be lumped into the same categories as those who invest in the least expensive programs that may pass muster or worse, engage in clearly intentional criminal behavior. If companies have the certainty that there is a chance to use a defense, that will invariably lead to stronger programs that can truly detect and prevent criminal behavior.
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Yesterday’s Wall Street Journal ran a story (password required) on federal prosecutors using the “responsible corporate officer” doctrine to impose personal liability on the officers and directors of drug companies for violations of food & drug laws.
This revives an obscure doctrine that I wrote about a few years ago (see here, pages 313-318) for a book that compared director liability for corporate actions across countries. The responsible corporate officer is understandably extremely worrying for corporate boards and executives because it means civil and even criminal liability when a corporation violates a law absent a director or officer knowing about the violation.
It is important to note that the scope of the doctrine is limited. It sprang forth in the 1943 Supreme Court case U.S. v. Dotterweich which interpreted the Federal Food, Drug and Cosmetic Act. The Court upheld the application of the doctrine to the same statute in 1975 in U.S. v. Park. In the 2003 case Meyer v. Holley, the Court revisited the doctrine and stated that Congress must be fairly explicit in a statute that it intends the doctrine to apply. And the current Supreme Court is unlikely to reverse course on this. The responsible corporate officer doctrine is unlikely to apply to new statutes absent explicit Congressional language.
Even so, the doctrine does apply to more than one federal food & drug statute. I list a number of federal cases in that book chapter I mention above. Moreover, state legislatures and courts have also applied the statute to state laws (and Meyer v. Holley does not necessarily constrain the ability of state courts to apply the doctrine to state statutes more liberally). So this dormant doctrinal strain should only give pause to boards and executives in certain heavily regulated industries that are subject to certain statutes. The doctrine is more limited, but potentially vastly more powerful – because lack of knowledge is not a defense -- than other sources of liability for directors that have been much more analyzed in recent years (for example, securities laws and Disney/Caremark/Stone v. Ritter).
I'm supposed to be devoting my summer to thinking about things like microfinance and securitization, but the past month I've been thinking at odd moments about two cases that have been capturing a lot of media attention: the prosecution of Casey Anthony for the murder of her 2 year-old daughter, Caylee, and the almost-prosecution of Dominique Strauss-Kahn for the sexual attack on a housekeeper at a NY hotel. Anthony was acquitted by a jury yesterday in the face of fairly thin evidence, notwithstanding her many admitted lies and inconsistencies. DSK seems to be about to avoid prosecution though he was indicted for sexual assault earlier. These cases are politically and socio-economically fairly far apart: the defendant in one was an unwed mother at age 19 while the other is a 60-ish Frenchman who headed up the IMF. But the cases have at least one thing in common: the person at the center of both is a liar.
Prosecutors have a lot of discretion over whether to bring criminal actions against defendants and to choose the charges. I have nothing to add to the voluminous legal literature on this. In the Anthony case, prosecutors no doubt felt pressure to indict someone in a case involving the dead body of a cute toddler. But, they probably felt more confident than they should have considering the lack of physical evidence based on the fact that Anthony is a liar. And a horrible one. She lied to investigators about almost everything but her name. Conventional wisdom says that juries hate liars. And all of the U.S. hates Casey Anthony, so why not go ahead and prosecute? But Anthony won, even though she lied at every turn and could provide no evidence of her defense -- that Caylee accidentally drowned but that Anthony covered up the drowning with the help of Casey's dad, who made her into a pathological liar by sexually abusing her. The judge even ruled that the alleged sexual abuse couldn't be mentioned in closing because no evidence backed it up. Many are outraged by the verdict, but one can argue that the rule of law prevailed. Regardless of what you think in your gut, we try not to sentence defendants to death based on the fact that they are crappy parents, get tattoos, have used cars that smell "like death" or tell lies.
So then what does Anthony's verdict tell us about the DSK case? Maybe that we can trust juries to understand that just because people lie, that doesn't mean that they should be tossed around by the legal system. To catch up, DSK's unnamed accuser has told some lies in the past: on her asylum application (from Guinea) and on her IRS tax returns. She has also changed her story: first, she told a supervisor about the attack immediately, now she says she cleaned another hotel room then finished DSK's before contacting a supervisor. It also may be that her boyfriend is a drug dealer and uses her bank accounts as part of his business dealings. They may also be trying to make lemonade out of lemons with this case against a wealthy defendant. But, just as Anthony's lies don't necessarily add up to her murdering Caylee, the accuser's lies here don't necessarily mean than she was not assaulted.
Anthony may tell lies out of mental illness, or she may just tell lies recklessly to avoid punishment either for covering up her child's accidental death or for a larger role in the child's death. She blamed Caylee's disappearance on two people who don't exist, and at the last minute blamed her father for atrocious acts. If Caylee was lying about her father, then that has to be one of the worst lies imaginable. DSK's accuser tells lies not to escape punishment, but to escape a dangerous existence in Guinea. (Here is a great op-ed about the accuser's motivations to lie.) You don't have to be Victor Hugo to realize that sometimes good people commit small infractions to save the lives of their family and themselves. Most of us in the U.S. have absolutely no idea what we would die to escape across the ocean so we and our children won't be raped or killed. Lying or exaggerating to gain asylum is probably the least morally questionable of the choices we might make. Surely if the Anthony jury could see past her lies to look at the evidence, a jury in a DSK case could look past the accuser's lies to judge the evidence. Anyway, just some random thoughts from a crazy month of looking at the CNN website!
The last two weeks have witnessed dramatic victories against two very different lawbreaking networks. First the death of Bin Laden removed the leader of al Qaeda. Second, the conviction of Raj Rajaratnam represented a major victory for prosecutors against the so-called expert insider trading networks. Although the two lawbreaking networks have a multitude of differences – in terms of social harm, motivations, and structure – they also have important similarities.
For one thing, both terror networks and insider trading networks present an opportunity to study social networks in a rigorous manner. “Networks” are more than just loose metaphor, but instead the subject of the emerging field of network theory that borrows from and links computer science, sociology, economics and a host of other fields. “Emerging” does not mean new: some of the germinal research stretches back over four decades. For example Granovetter’s work on “weak ties” in sociology. Mark Lemley and David McGowan authored a wonderful piece on network effects and law over 10 years ago and the legal literature continues to blossom (from Aviram to Zaring). Network theory has arrived.
And it is being put to use. A number of years ago, media reports suggested that the U.S. intelligence agencies were seeking to use network theory to crack Al Qaeda (see here for a law review article by Christopher Borgen on network theory and terrorism). The extent to which financial regulators and prosecutors have done the same with respect to insider trading is not clear, although scholars have recently suggested new potential approaches.
We may not know for a long time the extent to which network theory is influencing law enforcement. You can understand that intelligence and law enforcement would be unwilling to disclose the methods they use to catch bad guys. But the secrecy means that their methods do not enjoy the benefits – one could even say network effects – of being subject to the scrutiny of a larger community. Observers could help answer vital questions, such as “how effective are these efforts against lawbreakers?” and “could they be improved?” According to Linus’s Law: “given enough eyeballs, all bugs are shallow.” Aside from questions about efficacy, there are lingering and legitimate concerns about the implications of national security surveillance over internet communications.
But even the information we have learned about the two recent victories against anti-social networks leads to some interesting, if tentative observations. First, the ultimate value of these government operations is not in traditional deterrence alone, but in disrupting networks. In other words, successful operations against networks rely not only on crude deterrence of criminal behavior by scaring off would-be criminals. After all, it isn’t clear that a jihadist will be sobered by Bin Laden’s fate. By contrast, one thing that does disrupt networks is interfering with their capacity to send signals. Driving bad guys off the net seriously interferes with their ability to conduct business. From news reports, it doesn’t look like Bin Laden was all that successful in managing operations without an internet connection or a phone line. (Some reports suggest that the one time he did use a phone contributed to his location by U.S. intelligence.) Of course, government surveillance is thwarted not only by encryption, but by the daunting task of finding a needle in a haystack of data. Old-fashioned informants will still prove a critical tool.
Indeed media reports suggest that the government is heavily relying on informants in cracking the expert insider trading networks. From the perspective of law enforcement, this is important not only because it may lead to prosecutions, but also because it might disrupt the thing that these networks most rely on: trust.
So network theory suggests that we pay more attention to the marginalia of the Rajaratnam story. It is not the conviction alone that matters. It also argues for looking at other policy tools – such as a use of bounties in corporate crime – in another dimension, namely engendering distrust and thwarting the development of illegal networks. Of course, bounties for corporate crime and promoting snitching can create their own perverse incentives and pernicious effects. (Eleanor Brown penned an interesting essay on snitching, immigration, and terrorism that uses network theory.)
Another problem with a broader use of these tools is that they don’t always yield headline grabbing successes. No one sees the insider trading or terror attacks or law breaking that didn’t happen. The political economy of deterrence rewards prosecutors for victories in the courtroom, not necessarily for crime prevented.
Still, the events of the last week should give new life to study of network theory. There is evidence that network theory has become white hot. Consider this graph (from Google’s nifty Ngram tool) that plots the rising use of “network effect” compared to “deterrence effect” in books from1970 to mid 2007.
One can now also see a lot of those neat network graphs (see below) in news reporting.
Of course, the popularization of theory also threatens to reduce the intellectual rigor. Let’s hope the network effects of this line of inquiry are positive.
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Must have been a responsible jury, listening to all of those wiretaps again and again. Because, despite being out so long that you thought there must be some internal dissension, they came back with Rajaratnam guilty on all counts. A big win for the SEC and DOJ, and something that may mean a lot for the expert networks, which have been a ubiquitous feature of Wall Street edge-getting up until now.
The jury have been out a week, and now they have to begin deliberations again, as a sick juror has been excused, and an alternate added. One rule of thumb for criminal cases, often observed in the breach, is that the longer a jury is out, the less likely it will be coming back with a guilty verdict.
I think most legal observers would have told you that Raj had a difficult case to make - those payoffs to the McKinsey partners are amazing. And with a bunch of counts, it's easy to compromise on convicting him of a couple and hanging on the rest (or even acquitting on some). That does him very little good in sentencing. I can't imagine the jury is 11-1 acquit. But it is possible that it is 11-1 convict.
Assuming the hold-out isn't the one who was taken sick, you may want to start talking to your law bookie about retrial odds. There's no way the government, in a shop-window, see-we-really-are-doing-something trial, will just acquiesce to a hung jury. They'd have to want to try him again.
[About once every six months, I blog on something completely out-of-the-box, for which I will probably experience regret or remorse. I can see Gordon wince as I type. This is one of those times.]
Arizona is no stranger to controversy over passing uncommon laws, and this week is no exception. Arizona has passed a law criminalizing an otherwise legal abortion if the abortion is motivated by the fetus' gender or race. (The Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011 -- a pretty gutsy use of names of the deceased for your own purposes.) Here is the justification: "Backers of the measure said the ban is needed to put an end to sex- and race-related discrimination that exists in Arizona and throughout the nation. They insist the issue is about bias rather than any broader stance on abortion."
I am going to throw the flag here. Not because of any strong feelings I have about a woman's right to an abortion for or against, or any insight I have into the law's constitutionality, but because of strong feelings I have about logic.
1. The law is obviously about abortion, not about gender bias or racial bias. I don't see a companion law criminalizing seeking to adopt a child of a particular gender or race. There doesn't seem to be any mention of use of techniques of either the high-tech or old wives' tale varieties to attempt to influence the gender of a hoped-for fetus. And of course, we have no laws requiring individuals to be color-blind when choosing a mate, or even a sperm donor. Therefore, if sex-selection or race-selection is permissible in cases of adoption, artificial insemination or plain old coupling, then this law seems pretty much just about abortion. (Also, the law doesn't mention an equally troubling scenario of a woman postponing the choice of whether to keep a baby or put it up for adoption depending on what race the child is.)
2. This law seems impossible to enforce. How would a prosector prove that a woman had an abortion due to sex-selection or race-selection? The mere fact that the woman had an ultrasound prior to the abortion? (Note that in eighteen states, legislators want women to be required to see an ultrasound prior to having an abortion.) Won't any woman have either a mixed motive or a facially neutral explanation? Would we have to use circumstantial evidence (Married, well-off, with four boy/girl children and the fetus was the same gender)? And what about race? Can race show up on an ultrasound? (I had a "4-D" ultrasound, and my baby looked gold. I decided having a gold baby was fine with me.) I suppose that the situation we are looking for is one where a woman has more than one partner or various races, but possibly prefers to stay in a relationship with one of the partners, who is Race A. If woman finds out that baby is of Race B, then she jeopardizes the relationship, so she aborts. I would assume this would require some sort of DNA test whereby she can ascertain the actual father? Perhaps race was just thrown in here to make the law look more "discrimination-y" than "anti-abortion-y."
3. This law seems impossible to enforce, Part 2. Discrimination suits, either in employment or in jury selection or possibly other areas, are hard suits to prove. Employers always have other reasons for firing/hiring, and attorneys always have other reasons for striking/challenging jurors. So, to make a claim forceful, the accuser has to point to patterns of discrimination -- out of the last 30 people hired/fired, out of all the jurors you struck in the jury pool, etc. Hopefully we won't have too many cases of women with multiple abortions, so I'm not sure how a pattern of discrimination could ever be shown.
4. This law seems impossible to enforce, Part 3. The law criminalizes the performing of the abortion by the doctor. The discrimination is on the part of the mother. I would think the doctor would have to know the reason. Willful blindness? Seems like some messy cases on the horizon.
5. The law encourages frivolous lawsuits. The father or the maternal grandparents in some cases may bring a civil suit for damages against the doctor, but not the mother. I try not to be cynical, but there could be some fraud opportunities there.
6. Is this really a problem in Arizona? Yes, this type of discrimination may happen in other countries where abortion is easily obtained after the gestational age where gender is apparent and where certain genders are economically preferable. In the U.S., we have no culture where sons or daughters are uniformly more advantageous. And, in many states it is more difficult to have later abortions. Apparently, no statistics of this phenomenon in the U.S. were proffered as evidence.
7. I'm sure there are Constitutional Law issues here, but I'm already outside my expertise.
An identical bill with the same name was introduced into the U.S. House of Representatives in 2009.
Oh, well, back to corporate law.
As usual, my colleague Larry Ribstein is already all over the agency problems endemic with paying government prosecutors bonuses based on an annual conviction percentage (or number of convictions), as is the plan in Denver, CO. Because of my recent foray into thinking about incentive compensation (Regulating Compensation) and whether it increases risk-taking or possibly encourages excessive risk-taking, I can't help but balk at the thought of "conviction bonuses." A million years ago I also wrote about attorney fees for transactional lawyers, arguing that transactional lawyers should not have incentives to close a deal when they may have a duty to tell their clients to walk away (or disclose more, etc.) Here are may thoughts, many of which have already been voiced by others:
1. Prosecutors are officers of the court and have legal and ethical duties that have nothing to do with winning a conviction. If we believe that option-based compensation might make officers at Enron and elsewhere fudge the numbers, then do we want that same incentive to cloud judgment about exculpatory evidence, suborning perjury, etc.?
2. As others have mentioned, this incentive could have unintended consequences, such as prosecutors pleading out fewer cases, cherry-picking easy cases, going for "low-hanging fruit" offenses, etc. I would hate to be facing a trial date in December.
3. As with executive officers, whether a prosecutor wins or not turns on a lot of factors, many of which aren't related to the hard work or talent of the prosecutor. Perhaps the police officers and detectives did a good job investigating facts, locating witnesses, etc. On the other hand, the prosecutor may have had some tough, time-consuming trials that were lost on the facts but brought down her "percentage."
4. The Dodd-Frank Act wants corporations to have some system of clawbacks, whereby executive officers would have to repay incentive compensation if things go poorly down the line. Incentive compensation, particularly in financial institutions, has a timing mismatch problem whereby the profitability of certain decisions will not be determined until much after the compensation has been paid. So, if convictions are overturned on appeal, does the prosecutor face clawback?
5. Finally, criminal defense attorneys aren't allowed to defend cases on a contingency, so it seems strange that it would be ethical the other direction.
As Larry points out, with prosecutors, we fear that skewed incentives will impact people's liberty, not just a corporation's profitability.
Why would Andrew Cuomo, the tough, but seemingly-less-tough-than-Elliot-Spitzer AG, file civil fraud charges against Ernst & Young on his way out the office door and into the governor's mansion? If the case kills the company, Cuomo is going to have a reputation that makes Spitzer look like a piker, of course. But it probably won't kill E&Y, because it's a civil case, and the one way that criminal corporate sanctions matter is that they can put gatekeeper firms, like Arthur Anderson, out of business. Civil charges can't do that.
Anyway, here's Going Concern with an especially helpful roundup, concluded by a post from Matt Taibbi, which features him at his best and not so best.
Taibbi is good when he observes:
In the second quarter of 2008, [Lehman] lightened up their balance sheets with $50 billion worth of Repo agreements. This technique, apparently known as "window dressing," isn’t that much different conceptually from the Enron-style book-doctoring that used "independent" special purpose vehicles to hide liabilities. In this case Lehman didn’t use shell companies but instead scattered its dent in the financial atmosphere by booking loans as sales. Ernst and Young, which made over $100 million in fees between 2001 and 2008 working with Lehman, aided the process by signing off on Lehman’s crazy accounting.
This is totally true, right up to and including the Enron example, and I've never understood why the kind of end-of-the-quarter window-dressing that appears to be de rigeur corporate accounting is permitted. Seriously. If bankruptcy can undo pre-bankruptcy transfers of wealth, why can't accounting? At any rate, it's lucidly, not angrily, explained, and gets to one of the hearts of the matter.
Taibbi is not so good when he predicts that:
My guess is that this suit is the beginning of the end for Ernst and Young and, who knows, may be the beginning of a series of investigations that ultimately take down the auditors and ratings agencies that made the financial crisis possible. Without accountants and raters signing off on all the bogus derivative math and bad bookkeeping, a lot of this mess would never have happened. Zero Hedge has an excellent piece detailing all the ass-covering and finger-pointing going on at Ernst and Young; check it out if you have time.
Killing Arthur Anderson, a worldwide company with tens of thousands of employees, all but maybe four or five of whom had nothing to do with Enron, never struck me as particularly good policy, but more like, it's the cover-up-not-the-crime style discipline. So I think it is naive to wish for it, nor do I think it is in the least likely to happen. Zero Hedge is full of angry posters who have picked 30 of the last 2 fraud uncoveries. Those guys are nuts, and if Taibbi is using them as the basis for his confident predictions of the death of an accounting firm, he's sourcing, let's say, broadly.
Another thing - I always think that the bankster crowd should take a deep breath when presented with indictments, and pretend that the conduct that occurred happened to someone they like. You know, what if a union official was convicted of fraud? Kill the union?
Jesse Eisenger and Andrew Ross Sorkin have both written about the surprising lack of convictions in the wake of the financial crisis. Surely someone made public statements of confidence immediately before the bank collapsed?
I'm as surprised as anyone, mostly on political economy grounds. You've heard before on this blog some concern about the criminalization of corporate governance, and in my view, even the prosecutors of Enron could have done a better job explaining why the CEO and Chairman had to walk the plank, especially on honest services and obstruction of justice (the Supreme Court agreed on the former, too)). But they did go to jail, so did S&L executives numbering in the four figures - and the S&L crisis is one that many people blame more on Paul Volcker than on thousands of surprising concurrent cases of fraud.
The [Ninth Circuit last Friday] overturned the conviction of Prabhat Goyal, the former chief financial officer of Network Associates, on 15 counts of securities fraud, making false filings with the Securities and Exchange Commission and making false statements to the company’s auditors. The court concluded that the government simply failed to produce evidence to back up its claims that he intentionally inflated revenue and misled the accountants.
So maybe this kind of judicial reception, and the jury in Bear Stearns test case that failed, has made the government gun shy. Maybe New York defense lawyers are worth every penny, or maybe DC government types can't imagine throwing a wide swath of the financial community in jail. Maybe Madoff and Galleon distracted everyone. But I remain surprised. There's the flexible statutes available to the government, surely one could stop at AIG, Lehman, and Bear and satisfy the public .... My own tentative view is that it could be that for really high-ranking people to go to jail, someone has to have done something obviously criminal. So Lay and Skilling had Andy Fastow, Michael Milken had Ivan Boesky. But the out and out crook, for whatever reason has not turned up yet, which means that all the captains who went down with their Titanics can breath a bit more easily.
But that's speculation in the service of being as surprised as Sorkin et al, without necessarily wanting a parade of handcuffs.
The United States Court of Appeals for the Second Circuit just issued its opinion in Kiobel v. Royal Dutch Petroleum, a case involving claims under the Alien Tort Statute for human rights abuses in Nigeria. More specifically, the plaintiffs allege that Royal Dutch and Shell aided and abetted "Nigerian military forces [that] shot and killed Ogoni residents and attacked Ogoni villages — beating, raping, and arresting residents and destroying or looting property." The companies allegedly provided transportation, staging areas, food, and compensation to the Nigerian soldiers. The issue in the case is fundamental: "Does the jurisdiction granted by the [Alien Tort Statute] extend to civil actions brought against corporations under the law of nations?"
The court's answer: No.
The court's rationale: the subject-matter jurisdiction of the Alien Tort Statute is defined by customary international law, and "from the beginning ... the principle of individual liability for violations of international law has been limited to natural persons — not 'juridical' persons such as corporations — because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an 'international crime' has rested solely with the individual men and women who have perpetrated it."
While both the majority and the concurrence in Kiobel recognize a norm of aiding and abetting liability under the Alien Tort Statute, the majority relies heavily on the notion that "no international tribunal has ever held a corporation liable for a violation of the law of nations." Judge Leval observes in a concurring opinion that no tribunal has ever held that a corporation could not be liable for a violation of the law of nations.
The majority counters this argument in Parts II and III of the Discussion, arguing that customary international law is not established by the logical extension of existing norms, but only by actual practices. As for actual practices, the court leans heavily on the absence of cases imposing criminal liability on corporations as evidence that "corporate liability has [not] attained universal acceptance as a rule of customary international law." While the concurrence questions this approach, the majority offers substantial support for its analysis.
In the end, the concurrence offers an impassioned argument for corporate liability and wins convincingly in the battle of quotability, but the majority's opinion is more firmly grounded in analysis of authority. Julian Ku observes, "there appears to be no serious argument left that customary international law can impose duties on private corporations."
I suspect that the majority opinion will not put an end to serious argument, but you can judge for yourself.