Business Organizations Law Commons^™

Board Rooms And Jail Cells- Assessing Ngo Approaches To Private Environmental Governance, Joshua Galperin

Articles

Staff of the Nature Conservancy often find themselves in corporate board rooms. Staff of Greenpeace often find themselves in jail cells. The Nature Conservancy (TNC) prides itself on its non-confrontational, collaborative deal making, partnering closely with corporations like chemical giant Dow and agricultural lightning rod Monsanto. Both Dow and Monsanto, in fact, are members of TNC’s Business Council along with the likes of BP, Shell, and Cargill. Greenpeace, on the other hand, prides itself on direct action, civil disobedience, and non-violent confrontation. Greenpeace has launched combative operations against Dow, Monsanto, and other TNC collaborators. While business partners praise TNC’s cooperative …

A Changing Mosaic In Sec Regulation And Enforcement: Broker-Dealers And Investment Advisers, Douglas M. Branson

Articles

The 2010 Dodd-Frank Act directed the SEC to study the issue of whether the Commission should, by regulation, decree broker-dealers (“registered representatives”) subject to the same fiduciary standards applicable to investment advisers, applicable at least since SEC v. Capital Gains Research Bureau, 385 U.S. 180 (1963). The SEC completed such a study in 2011, predictably recommending that the Commission exercise the authority Dodd-Frank had given it, namely, waving its wand, declaring brokers fiduciaries. Many able academics and regulators have adumbrated the pros and the cons of such a regulatory step. To date, however, the SEC has done nothing, undoubtedly …

Gatekeeping, Peter B. Oh

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Gatekeeping is a metaphor ubiquitous across disciplines and within fields of law. Generally, gatekeeping comprises an actor monitoring the quality of information, products, or services. Specific conceptions of gatekeeping functions have arisen independently within corporate and evidentiary law. Corporate gatekeeping entails deciding whether to grant or withhold support necessary for financial disclosure; evidentiary gatekeeping entails assessing whether expert knowledge is relevant and reliable for admissibility. This article is the first to identify substantive parallels between gatekeeping in these two contexts and to suggest their cross-treatment. Public corporate gatekeepers, like their judicial evidentiary analogues, should bear a duty of reliable monitoring.

Enron - When All Systems Fail: Creative Destruction Or Roadmap To Corporate Governance Reform?, Douglas M. Branson

Articles

This article raises the unthinkable proposition (for academics at least) that Enron may have been an aberration. The Enron debacle may have been the rare case in which nine, ten or more sets of monitors and gatekeepers failed. Alternatively, as with Tyco, WorldCom, Adelphia, Rite Aid or other celebrated corporate "busts," Enron may be the handiwork of one or two well placed wrongdoers, in this case, CFO Andrew Fastow. Enron then may not be the pathway to meaningful reform at all.

The article next proceeds to a critical review of Sarbanes-Oxley's principal provisions. The conclusion reached is that by and …