January 20, 2014
Moneyball versus Fighting Implicit Bias: Two Views on Tenure and Evaluating Scholarship
Posted by Erik Gerding

Last week witnessed two very different views of how faculties can and should evaluate junior scholars for hiring and tenure.  Compare this academic study (with the catchy title Moneyball for Academics ) with KerryAnn O’Meara’s essay in Slate  on countering implicit bias in tenure reviews. 

Both works leave a lot of questions unanswered.  Even if the Moneyball approach one day delivers on its promise – to use network analysis of citations to predict the success of junior academics – it would also prove less than satisfying.  Scholars who start out at citation hubs and collaborate with other scholars at those hubs – may be more likely to be cited going forward.  But does that make their work more valuable?  If financial markets are marked by fads, fashions, herding, and information cascades, the “market for ideas” (whatever that means) is even more susceptible to these dynamics.  At least financial markets have arbitrageurs.  (If only Socrates was able to ride out his short sale of Athenian democracy a little bit longer.)

The Slate article lies at the opposite end of the spectrum of Moneyball.  O’Meara is critical of excessive reliance of quantitative factors –including citation counts – in evaluating scholarship.  She argues that, to address problems of implicit bias, faculties should take a broader view of what constitutes scholarly contributions than traditional measures, including the use of external  reviewers.  But what does that look like in practice?  If there is an inescapable level of subjectivity to any evaluation of scholarship, what standards should apply? 

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January 15, 2014
My new book: Law, Bubbles, and Financial Regulation
Posted by Erik Gerding

After over four years of work, my book Law, Bubbles, and Financial Regulation came out at the end of 2013.  You can read a longer description of the book at the Harvard Corporate Governance blog.  Blurbs from Liaquat Ahamed, Michael Barr, Margaret Blair, Frank Partnoy, and Nouriel Roubini are on the Routledge’s web site and the book's Amazon page. The introductory chapter is available for free on ssrn.

Look for a Conglomerate book club on the book on the first week of February!

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December 29, 2013
Symposium on Cunningham's Contracts in the Real World; Contract as Pattern Language
Posted by Erik Gerding

Just before Christmas the Washington Law Review published a symposium issue honoring Larry Cunningham's new book, Contracts in the Real World.  The issue is a good read for Contracts teachers.  You can read my contribution, "Contracts as Pattern Language" here.  The abstract for this essay is below:

Christopher Alexander’s architectural theory of a "pattern language" influenced the development of object-oriented computer programming. This pattern language framework also explains the design of legal contracts. Moreover, the pattern language rubric explains how legal agreements interlock to create complex transactions and how transactions interconnect to create markets. This pattern language framework helps account for evidence, including from the global financial crisis, of failures in modern contract design.

A pattern represents an encapsulated conceptual solution to a recurring design problem. Patterns save architects and designers from having to reinvent the wheel; they can use solutions that evolved over time to address similar problems. Contract patterns represent encapsulated solutions within a legal agreement (or set of agreements) to a specific legal problem. This problem might consist of a need to match the particular objectives of counterparties in a discrete part of a bargain or to address certain legal rules. A contract pattern interlocks, nests, and works together with other contract patterns to solve more complex problems and create more elaborate bargains. Interlocking patterns enable scalability. Just as Alexander’s architectural patterns for rooms create patterns for buildings, which create patterns for neighborhoods and cities, patterns of individual contract provisions form legal agreement patterns, which interlock to create patterns for transactions, which, mesh to create patterns for markets. For example, contract patterns help lawyers draft real estate contracts. These contracts interlock in sophisticated real estate transactions, which mesh with other contract patterns to form securitization transactions. Securitization patterns create markets for asset-backed securities, which, form part of the larger shadow banking system.

This scalability differentiates contract patterns from boilerplate. However, legal scholarship on boilerplate – including Henry Smith’s work on the modularity of contract boilerplate – patterns allow certain debt contracts to become what Gary Gorton calls "informationally insensitive" and to enjoy many of the economic features of money.

The pattern language framework explains not only how sophisticated contracts function, but also how they fail. The pattern language framework provides a lens for examining recent contracts law scholarship on the failures of sophisticated contract design, including "sticky" contract provisions in sovereign bond agreements, "Frankenstein" contracts in mortgage-backed securitizations, and the "flash crash." If modularity and contract design patterns foster the development of new financial instruments and markets, then their features can also contribute to the unraveling of these markets. For example, by restricting the information content of contracts, patterns and modularity not only midwifed the creation of liquid markets for those contracts, they also played a role in "shadow bank runs" and the catastrophic freezing of these markets. The failure of contracts can have systemic effects for entire markets when a particular contract enjoys widespread use or when it is so connected to other critical contracts that cascading failures occur.

This essay was a contribution to a symposium for Larry Cunningham’s book, Contracts in the Real World.


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September 12, 2013
Listicle: Citations To The Most Cited Article In Select Business Law Journals
Posted by David Zaring

We like the developing Harvard Business Law Review, and we are very proud that our own Gordon Smith has penned the third most cited article in the Journal of Corporation Law's history.  But how big a hit is a hit in one of these journals?  Herewith, the number of citations to the most cited articles in five of them:

248 - Business Lawyer (2002)

200 - Journal of Corporation Law (2002)

124 - Delaware Journal of Corporate Law (2007)

95 -  American Business Law Journal (2000)

43 -  Berkeley Journal of Business Law (2007) 

The dates are the dates of those most cited articles; it is worth noting that The Business Lawyer has been around for a long time, and has published lots of things, making it quite the tournament to finish top of (so congratulations, John Coffee!), while the Berkeley Business Law Journal is still in volume single digits.  Still, credit to JCL, which has really occupied a niche.  

By way of comparison, William Cary's Yale Law Journal piece "Reflections on Delaware" has been ctied 985 times.  

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July 09, 2013
Vic Fleischer on Seton Hall and Academic Freedom
Posted by Erik Gerding

Here is Vic Fleischer's DealBook column on what the Seton Hall layoffs of untenured faculty means for academic freedom: Link

The budget situation of law schools is likely going to lead to other pressure on academic freedom.  Don't be surprised if the search for new revenue pushes many schools into an eat-what-you-kill focus on faculty funding much of their salaries through grants.  That might work well in the natural sciences (assuming that you have a funder like the NIH or NSF that has plenty of resources and solid academic peer review).    But much of law school research is normative.  Just try to present a purely descriptive paper at a workshop.   Who would fund research into financial regulation without placing strings attached?  The government of Iceland, NASDAQ, some industry trade group, an investment bank?

Moreover, many important fields in the legal academy might not receive any grants at all.  The marketplace for ideas is not the same thing as the marketplace for grants.


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February 08, 2013
A Shadow Banking Scholarship Sampler
Posted by Erik Gerding

A small sampling of recent legal scholarship on "shadow banking" (a topic of I've written about myself):

Steve Schwarcz of Duke also produced a bevy of articles on the topic at the end of last year.

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February 07, 2013
Pildes on the Legal Academy and the Temptations of Power
Posted by Erik Gerding

Richard Pildes (NYU) recently posted on ssrn a thoughtful book chapter that confronts law professors with a series of tough questions about the trade-offs of becoming engaged in the policy process, which ranges from co-authoring an amicus brief to serving in a President’s Administration or even running for office. (The abstract is at the end of this post).

Pildes intentionally seeks to raise more questions than answers. Although much of his essay may not strike the reader as new, it renders an invaluable service nonetheless by renewing the call for legal academics to reflect on the inherent conflicts between critiquing the law and helping interpret, apply, or construct it. This is itself a variation of the ancient tension between describing how the law is and how it ought to be.

Pildes sees a generational divide among legal scholars. On one side, he places the generation of scholars like Bruce Ackerman, with a legendary disdain for engaging the political process. On the other side, Pildes claims younger scholars are more likely to write to shape policy and to be active in litigation, consulting, and government service.

I’m not so sure this is factually correct. (I can think of numerous older and mid-career professors on the Harvard faculty when I was a student who served in Presidential Administrations, worked on law reform, or argued before the Supreme Court). Perhaps the trend is cyclical. Pildes surmises that the generational shift he sees may stem from two Democratic Administrations in the past two decades. The existence of this generational shift seems like an area ripe for empirical study.

Pildes follows a provocative essay by Richard Fallon (Harvard) two years ago critiquing the standards for law professors co-signing or authoring amicus briefs (here are both a draft and final version). Fallon’s essay generated both NY Times coverage as well as equally incisive replies (e.g., Amanda Frost’s (American) essay).

The Fallon debate yielded a particularly useful harvest. It prompted many academics to articulate their standards for writing or co-signing amicus briefs. The academy needs a similar debate to offer guidance to professors (particularly, but not exclusively, junior professors) on other aspects of policy engagement. What should professors consider in testifying before Congress or an agency? When to take on consulting or litigation work?

The questions Pildes raises assume a greater urgency because of institutional pressures he does not address in the essay. Budgetary pressures will undoubtedly pressure law schools and professors to seek more soft money grants and big hard money donations to fund programs and professorships. To what extent will this put pressure on the valuable role of academic dissent that Pildes rightly cherishes? This institutuional economic pressure may present more of a challenge to dissent than revived questions about academic tenure.

It is, however, by no means a new challenge. Bruce Ackerman, for example, holds the Sterling Professorship at Yale, which was funded by John William Sterling, founder of Shearman & Sterling and counsel to Standard Oil, Henry Ford, and Jay Gould. But institutional pressures on law schools and professors merit re-examining again and again with fresh eyes.  

Here is the abstract for Pildes' chapter (after the jump):

This essay is meant to prompt professional self-reflection for academics, particularly legal academics, on the appropriate relationship between the pursuit of knowledge and the pursuit of power. 

Academic institutions, in theory, should be among the most robust sites in which dissent against conventional or widely-shared views of policy and law ought to find easy expression. That has long been part of the justification for the general principle of institutional academic freedom, as well as for specific organizational features of the academy, such as tenure. 

Yet the legal academy risks being more compromised, and increasingly so, in its ability to play this role than is often recognized. The reason is the paradox of the relationship of legal academics to actual political power. Legal academics are not just independent scholars of public policy, law, legal or political institutions. They are also often direct participants in the systems of public and private power they study. Unlike academics in most other disciplines (except, perhaps, economics), legal academics have greater opportunity for effective influence over policy, law, and politics. The various forms of practical engagement which legal scholars undertake -- consulting, litigating, testifying to Congress or courts, service in government -- have significant benefits, both in the classroom and in scholarship. But they also come with significant risks, including risk to the ability to play an essential role that justifies academic institutions, the role of being able to stand apart from existing constellations of power or interest or conventional wisdom on issues of moment.

This essay identifies the various ways in which the paradoxical position of the legal academic and the temptations of access to political and legal power threaten the ability of the legal academy to be a source of dissent. The essay then explores how legal academics ought to think about the benefits and risks of the unique position of academics closely connected to the institutions and actors who wield actual political and legal power. I emphasize that the foundation for considering the role of legal academics as potentially important sources of dissent must be a belief in the existence and importance to collective decision making of expert knowledge about the kinds of questions legal academics teach, research, and write about. This premise needs emphasis because many forces press against it. American democracy since the Jacksonian era has always contained a strong strand of anti-elitism capable of being mobilized by political actors against various claims to specialized knowledge and expertise. 

In my view, Intellectual independence, and the capacity to dissent from various orthodoxies and structures of power is more difficult to attain and maintain than academics often recognize. That is so even though academics are institutionally and structurally situated to be in most able to resist the political or ideological conventions of the moment. As one example, I discuss the political scientist Arthur Schlesinger Jr.’s distortion of history in his public attempt to legitimate President Truman’s unilateral decision, without congressional authorization, to commit massive military force to defend South Korea against North Korea’s attack in the 1950s. The unauthorized Korean War was a turning point in American political practice regarding unilateral presidential commitments of military force. Twenty years later, during the Vietnam War, Schlesinger publicly recanted and acknowledged that he had distorted the history to support Truman’s war. 

This necessarily brief essay is meant mainly to raise and provoke further discussion of these issues, rather than to offer a comprehensive analysis. It is not offered as a moralistic exercise, and I have engaged in many of the practical activities I describe. But power -- political, financial, and other -- is seductive, and the tensions between it and intellectual independence are central to the modern legal academy and warrant fuller discussion.


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January 12, 2013
The Business Lawyer seeks submissions
Posted by Erik Gerding

A message for those business law scholars and practitioners seeking a well respected, peer-reviewed home for their scholarship:

The Editorial Board of The Business Lawyer is soliciting submission of articles and essays for Volumes 68 and 69. TBL is the flagship scholarly journal of the American Bar Association Section of Business Law. It reaches 41,000 readers on a quarterly basis. Authors must submit exclusively to the journal and submissions are peer-reviewed. We generally give authors a response in about two weeks. TBL provides a good forum to reframe scholarly articles published elsewhere for an audience of judges and practitioners. Past authors include Bernie Black, Henry Wu, Lucian Bebchuk, Joe Grundfest, Guhan Subramanian, Vice Chancellor Leo Strine, former Chief Justice of the Delaware Supreme Court Norman Veasey, Larry Hamermesh, Starvros Gadinis, Roberta Karmel, Jonathan Lipson, and Barbara Black.

Articles should be submitted to Diane Babal, Production Manager, at diane.babal@americanbar.org. Questions about submissions can be addressed to Associate Editor-in-Chief, Professor Gregory Duhl, at gregory.duhl@wmitchell.edu.

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November 27, 2012
Judge on Interbank Discipline
Posted by Erik Gerding

Is market discipline dead? Market discipline as a means to check the systemic risk posed by financial institutions was very much in vogue in financial institution scholarship until the financial crisis. Not any more. There are certainly calls for restraining government bailouts and some interesting work on contingent convertible capital requirements. But, by and large, this pillar seems to have been moved to the back of the financial regulation temple.

Kate Judge (Columbia) has a new paper (forthcoming in the UCLA Law Review) that cuts against this contemporary conventional wisdom. She argues for revisiting and rethinking the idea of interbank discipline – that is the incentives and capacities of large, complex banks to monitor and check the risk-taking of their counterparties. Here is her abstract:

As banking has evolved over the last three decades, banks have be-come increasingly interconnected. This Article draws attention to an effect of this development that has important policy ramifications yet remains largely unexamined—a dramatic rise in interbank discipline. The Article demonstrates that today’s large, complex banks have financial incentives to monitor risk-taking at other banks, the infrastructure, competence and information to be fairly effective monitors, and mechanisms through which they can respond when a bank changes its risk profile.

The rise of interbank discipline has both positive and negative ramifications from a social welfare perspective. The good news is that self-interested banks may be expected to penalize a bank when it takes excessive risks, thereby deterring such risk taking. The bad news is that the interests of banks and society are not always so well aligned. Other banks, for example, may be expected to reward a bank when it changes its risk profile in a way that increases the probability that the government would bail the bank out rather than allowing it to fail. This is because a bailout protects a bank’s creditors, even though it is socially costly. Interbank discipline may thus encourage banks to alter their activities in ways that increase systemic fragility.

In drawing attention to the powerful yet mixed effects of interbank discipline on bank activity, this Article contributes to a new generation of scholarship on market discipline. Its aim is not to question whether we need regulation, but to address the pressing issue of how we should allocate inherently finite regulatory resources. It suggests that by reducing the regulatory resources devoted to activities that other banks are performing relatively well, increasing the resources devoted to activities that regulators are uniquely situated or incentivized to address, and seeking to counteract the adverse effects of interbank discipline, bank oversight could be redesigned to more effectively promote the stability of the financial system.

The paper is a valuable springboard for talking about the flip side of bank “interconnectedness” – not merely as transmission lines for contagion, but as a crucial feature of market and regulatory architecture.

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November 16, 2012
Shadow Banking From the Top-Down or Bottom-Up?: at the Clearing House Annual Meeting
Posted by Erik Gerding

I just returned from speaking at a panel at the Clearing House’s Annual Meeting in New York that focused on the regulation of shadow banking. My fellow panelists included Amias Gerety (Deputy Assistant Secretary for Financial Stability, U.S. Dept. of Treasury), Ed Greene (Senior Counsel, Cleary Gottlieb), Sandy Krieger (Executive Vice President, FRBNY), and Barney Reynolds (Moderator, Shearman & Sterling).

Our first bone of contention was whether shadow banking is actually a useful concept for financial regulation. I think it is, as I have written elsewhere.   Shadow banking describes how a series of financial instruments, markets, and institutions came to perform the same economic functions as banks:

  • credit intermediation/credit risk transfer,
  • maturity transformation, and  
  • liquidity transformation (i.e. creating money-like instruments that have theoretically high liquidity and low credit risk) (see Morgan Ricks).

We discussed several of these instruments and institutions at the panel including: securitization, money market funds, repos, and prime brokerage. These markets not only performed similar economic functions as banks, in the Panic of 2007-08, they also suffered runs and solvency crises just like banks.

In response, the federal government refashioned some of the same conceptual tools historically used to address banking crisis to staunch a shadow banking crisis. What, after all, was TARP and the alphabet soup of Federal Reserve liquidity facilities other than the government:  

  • acting as lender-of-last resort,
  • providing deposit insurance to investors in shadow banking markets, and  
  • resolving institutions that failed because of shadow banking investments (albeit resolution without wiping out existing shareholders).

So if it quacks like a bank, suffers runs like a bank, and is saved like a bank, it needs to be regulated like a bank.

The difficulty is how to narrowly tailor bank-like regulations (from capital requirements to liquidity regulations) to address the specific forms of risk posed by each kind of shadow market. As I put it, you don’t regulate a turkey the same as a duck or a chicken. This turducken problem led some of my co-panelists to believe a bottom-up approach to regulation (one that focuses on market failures of individual instruments) makes more sense than a top-down approach (starting with the conceptual problems of shadow banking and then figuring out how to tailor policy approaches to particular contexts).

I continue to think a top-down approach helps focus on what are the big picture market failures and systemic risks that we should care about – bank runs and liquidity crises; high leverage; and correlated risk-taking and herd behavior by financial institutions.

Here were my takeaway points from a great panel discussion:

The bottom-up approach may also obscure a couple of key problems, including:

  • These markets – from securitization to repos to money market funds – have been tightly connected. For example, asset-backed securities often “collateralized” repo loans. Money market funds invested in asset-backed commercial paper and repo markets. A focus on instruments means less attention is given to the network as a whole.
  • If you want to regulate a network, you focus on the hubs. Who were at the hubs of the shadow banking network? Investment banks! They have their finger in every shadow banking pot, including via: 
    • Securitizing assets off their own balance sheet;
    • Sponsoring securitizations and underwriting asset-backed securities;
    • Purchasing asset-backed securities;
    • Borrowing through repos...

I could go on – the whole business of investment banks is to “make markets” and serve as the intermediary of a web of transactions.  Focusing exclusively on instruments means we may overlook the role of critical institutions in making the plumbing of shadow banking work.

  • Perhaps the greatest myth of the shadow banking system is that only unregulated entities were involved. In fact, regulated entities were deeply involved. Banks securitized assets off their balance sheets. Banks, investment banks, insurance companies, and a host of other institutional investors purchased asset-backed securities. They also issued securities that were bought by money-market funds, which, in turn, are regulated by the SEC.
  • Indeed, the real sweet spot of the crisis, came not with heavily regulated institutions or unregulated institutions (like hedge funds), but less regulated affiliates of heavily regulated entities. Think AIG’s London affiliate that wrote all those credit derivatives or Bear Stearns’ hedge funds. These examples indicate that conglomerates were playing games to transfer the benefits of government guarantees (explicit or implicit) and other subsidies from regulated to less-regulated affiliates.
  • In many cases, it was not a lack of regulation that caused shadow banking to flourish, but the presence of regulation. In other words, Congress and regulators often granted preferences that allowed the markets for various shadow banking instruments to flourish. For example, Congress exempted repos (and later swaps) from various bankruptcy rules. (see Roe) Or, to pick a hot topic, consider the 1983 SEC rule change that allowed money market funds to price their shares at a fixed Net Asset Value, which made these investments appear more safe and bank-deposit-like. (see Birdthistle).

Shadow banking provides a vital conceptual framework to remind policymakers why and what they should regulate. It also provides a field guide to studying new financial instruments. When new financial innovations arise, when should financial regulators take heed and what should they watch for.

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November 12, 2012
Financial Regulation at Brooklyn Law
Posted by Erik Gerding

David and I presented at a great financial regulation workshop at Brooklyn Law School on Friday. Many thanks to Claire Kelly and Roberta Karmel for putting together a great program (particulary during a few extraordinary weeks in Brooklyn).

Among the doom and gloom at the conference: banks are taking on unknown amounts of commodities risk, coco bonds and TRUPs aren’t all they are cracked up to be, and auditors make lousy agents for financial regulators.

Among the bright spots: there may be better ways to fix the tax incentives for financial institution leverage, and the Volcker Rule may offer opportunities to address the market structure for OTC swaps markets.

Illuminated: why EU counties and other went gaga over collective action clauses in sovereign debt, what international financial regulation can teach international public law, and new insights into the corporate governance role of credit derivatives.

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AALS Earlybird Registration Two Days Away: Securities, Financial Institution and Consumer Finance Events
Posted by Erik Gerding

With the earlybird registration deadline for the AALS Annual Meeting in New Orleans two days away, here are two events to put on your calendar:

Friday, January 4th: Joint Program of the Securities Regulation and FInancial Institutions/Consumer Financial Services Section [AALS Code 4160]

The Securities Regulation and Financial Institutions & Consumer Financial Services sections have joined forces to put together a Joint Program on the “The Regulation of Financial Market Intermediaries: The Making and Un-Making of Markets” on Friday, January 4th from 2 pm to 5 pm.

The program will give us a chance to look at the intersection of capital markets and financial institution regulation, a sweet spot that was overlooked until the global financial crisis hit. The program will include a panel of scholars who have been looking at this intersection for quite a while, including, Onnig Dombalagian (Tulane), Claire Hill (Minnesota), Tamar Frankel (Boston University), Donald Langevoort(Georgetown), Geoffrey Miller (NYU), David Zaring (Univ. of Pennsylvania – Wharton School of Business),David Min (UC Irvine and author of How Government Guarantees in Housing Finance Promote Stability) and Kimberly Krawiec (Duke) (Moderator).

The program will also include the following four papers picked from a large response to our Call for Papers:

Saule Omarova (North Carolina) will moderate the call for papers panel.

Saturday, January 5th: Financial Institutions/Consumer Financial Services Lunch [AALS Code 1413]

Our keynote speaker will be Michael Barr of the University of Michigan Law School.  Professor Barr returned to Michigan after serving as Assistant Secretary for Financial Institutions at the U.S. Department of Treasury in the Obama Administration.  Professor Barr was one of the architects of the Dodd-Frank Act.  Anna Gelpern (American Univ.) will introduce Professor Barr.  

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October 22, 2012
PCAOB Considers Mandatory Auditor Rotation
Posted by Erik Gerding

On Thursday, I travelled to Houston and gave a statement before the Public Company Accounting Oversight Board in a roundtable hearing, as the PCAOB considers whether to impose a mandatory auditor rotation rule. In using its new inspection powers, the PCAOB has found worrying evidence of auditors compromising their independence, objectivity, and professional skepticism (see the PCAOB’s concept release soliciting public feedback).

This problem and whether mandatory auditor rotation is an appropriate solution present a bramble bush of questions that have solicited a great deal of comments (you can see the statements at the Houston roundtable (including my own) here); the PCAOB also held roundtables previously in Washington, D.C. and San Francisco).

For me, the roundtable represented an opportunity to revisit some of the legal scholarship on audit failure that deserves renewed attention, even as public attention has shifted from Enron/SOX to “Subprime”/Dodd-Frank. Let me highlight the works of two scholars in particular.

First, Sean O’Connor (Univ. of Washington) authored a great series of articles that examined “the creation” of the problem of auditor independence. In one work, O’Connor looks at how certain accountants pushed for, and Congress created, requirements for mandatory “independent” auditing of issuer financial statements in public offerings (the ’33 Act) and in periodic reporting (the ’34 Act). Professor O’Connor looks at how the New Deal Congress imported much of these requirements from provisions in Britain’s Companies Act but without considering key differences in status and governance between chartered accountants in Britain versus the accounting industry in the United States. Moreover, Congress failed to spell out what makes auditors “independent.” This omission left the job to the SEC and resulted in Boards and not shareholders selecting and paying auditors. In a later work, O’Connor looks at how these legal requirements and the “issuer pays” model mean that true auditor independence will always be elusive. His work parallels work in other scholarship on gatekeepers (for example, Frank Partnoy’s theory of how “regulatory licenses” endow credit rating agencies with government-granted oligopoly power that undermines their effective gatekeeping). O’Connor presents a fairly radical set of solutions, including ending the ’34 Act (but not the ’33 Act) statutory requirements for independent audits and giving shareholders control of auditor selection.

Bill Bratton (Penn) had a second and different spin on the problem of auditor independence. He agrees that the issuer-pays model fundamentally compromises auditor independence. But, he argues that making auditors responsive to shareholders is problematic, as different groups of shareholders have radically different investing interests and time horizons. This article represents part of a series of articles by Bratton on the “dark side” of shareholder value and the downsides of shareholder primacy. Instead of making auditors beholden to shareholder, Bratton recommends strengthening the fidelity of auditors to accounting rules. Less radical than O’Connor’s suggestions, Bratton’s proposal raises a number of questions, including whether fidelity to rules can provide adequate discipline of audit firms without a third-party strenuously enforcing those rules on behalf of shareholders, whether professional and social norms provide a meaningful disciplining device for auditors, and, most vexing, how effective can rules be when industry wields a powerful hand in writing them.

Both sets of works deserve renewed scrutiny as the problems of auditor independence persist.

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October 11, 2012
SPACs: The Finance Article (Part 3, Acquisitions)
Posted by Usha Rodrigues

Even the Glom faithful may well have forgotten, but way back in August I promised a 3-part series on SPACs, the fruits of a recent article I co-authored with Mike Stegemoller.  The first post focused on IPO underpricing, and the second on the underwriting discount.  With this post, I'll conclude by shifting to the second phase of a SPAC's lifecycle: the acquisition.

Once the SPAC is up and running, it has a limited amount of time to identify a target and negotiate a deal.  Once that's done, the SPAC announces the proposed acquisition to the market, and SPAC shareholders have a chance to veto the deal or (as the form evolved) exit if they disapprove of the acquisition. 

The finance  literature has focused much attention on the effect of an acquisition announcement on the acquiror's stock, generally trying to answer the question whether acquisitions are positive for the acquiring firm's shareholders or represent something deleterious, like costly empire building.

Generally in an acquisition, where a typical firm buys another typical firm, there's a lot going on that is embedded in the market's reaction to the acquisition announcement.  For example, the change in the acquiring firm's stock price may contain information about overpayment because of hubris (driving the stock price down).  In addition, and pushing in the opposite direction, stock price returns could reflect synergies that make the deal worth doing, even if in the presence of some overbidding.  Further, the synergy value is hard to quantify, as is the question of how much of the synergy value is split between the target and the acquiror. 

Enter the SPAC.  An empty shell, it offers no synergy value to a target.  Empire building should not drive the managers, many of whom will be replaced if and when the deal goes through.  Even if some of the SPAC managers suffer from hubris, the shareholder voice on the ultimate acquisition serves as a corrective.  Given the reduction in potential managerial agency costs, we hypothesized that SPACs overbid for targets less than typical firms.  Thus, if acquirer returns for SPACs are higher than those of traditional acquirers, that finding tells us something about mispricing in typical acquisitions: they tend to contain detrimental components that reduce the value to acquiring shareholders, even given the potential for synergies. 

Our results: SPACs acquirers experience higher returns than traditional acquirors in a time and industry matched sample.  Which suggests that in typical acquisitions, even if there are gains to be had from synergies between the firms, there are also losses that may outweigh those gains. In other words, we offer new evidence that traditional acquirors tend to overbid. 

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October 05, 2012
AALS Insurance Law Program on Consumer Protection
Posted by Erik Gerding

Conglomerate readers interested in consumer financial protection should check out the Insurance law Section Program at the AALS Annual Meeting on Sunday, January 6th from 10:30 am to 12:15 pm, which will cover consumer protection issues.  Speakers include:

  • Joshua Teitelbaum, Georgetown University Law Center (Moderator); 
  • Shawn Cole, Harvard Business School;
  • Kyle Logue, University of Michigan Law School;
  • Lauren Willis, Loyola Law School (Los Angeles);
  • Daniel Schwarcz, University of Minnesota Law School; and
  • Orly Lobel, University of San Diego Law School
Lauren and Dan both presented papers at a summer workshop here at the University of Colorado Law School on consumer financial protection, so I had a preview of this great line-up.

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