Business Law, Public Responsibility, and Ethics Commons^™

Timing Whistleblowing, Andrew K. Jennings

Faculty Articles

Whistleblower programs (WBPs) expose hidden corporate wrongdoing. They do so by offering retaliation protection and financial bounties to those who bring original information to law enforcement about unseen, and often complex, misconduct. Under a standard account, whistleblowing serves the public interest by increasing the ex post detection of illegal activity and the ex ante risk of its exposure. That standard view—which centers whistleblowing on detecting wrongdoing—is incomplete, however. To present a fuller view, this Article introduces a complementary model that refocuses whistleblowing as preventing wrongdoing. Working together, these models show that a WBP can do more than enable detection at …

Corporate Governance And Environmental Citizenship In Global Hospitality: A Cross-National Empirical Study, Leonard A. Jackson

Faculty Articles

The hospitality industry’s global reach and resource-intensive operations have placed it under growing scrutiny for environmental impact. This empirical study examines how corporate governance influences corporate environmental citizenship (CEC) among eight major hotel companies across North America, Europe, and Asia from 2020 to 2023. Drawing on agency, stakeholder, institutional, and legitimacy theories, the study hypothesizes that stronger governance—measured by board independence, separation of CEO and Chair roles (non-duality), and ownership concentration—positively relates to environmental performance. A panel dataset of 32 firm-year observations is analyzed using regression models. The results show that higher board independence and greater ownership concentration are associated …

Criminal Investors, Andrew K. Jennings

Faculty Articles

This Article reassesses the culpability of those who invest in law-breaking firms. Prosecutors currently treat investors as victims of corporate wrongdoing rather than as actors who might bear responsibility for it. This Article observes, though, that investment can facilitate, and even cause, illicit corporate activity. When investors intentionally contribute to those effects, substantive criminal law imposes liability on them just the same as it does on accomplices, conspirators, or principals in other contexts. Despite this formal parity, however, investor criminal liability is more a theoretical proposition than a practical reality.

This Article questions that status quo by asking whether and …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Faculty Articles

In her important book, Unwired: Gaining Control Over Addictive Technologies, Gaia Bernstein illustrates the value of a comparative approach, drawing lessons from fights around the regulation of tobacco and ultra-processed food for the regulation of social media. Building on Bernstein’s work, this symposium contribution aims to draw additional insight from experience with drug and gambling regulation for the regulation of social media, video games, AI, and other potentially-addictive technologies.

Specifically, after introducing Bernstein’s book and the foundation it lays, we draw six lessons from the study of psychoactive drugs and gambling. As we elaborate below: Lesson one is that …

Criminal Recordkeeping, Andrew K. Jennings

Faculty Articles

Business managers must create and keep records for decision-making. Yet doing so presents an obvious problem for those who manage illegal businesses: their records would make for powerful evidence in the hands of prosecutors. That problem raises a question—why would one knowingly create and keep such records when their mere existence risks detection and sanction? The answer, in short, is that the interaction of illicit activity’s complexity and continuity compels recordkeeping. A business, including a criminal one, cannot be managed without adequate information about its operations, obligations, and condition. Just how complex and long-lived its affairs are will drive the …

Criminal Subsidiaries, Andrew K. Jennings

Faculty Articles

Corporate groups comprise parent companies and one or more subsidiaries, which parents use to manage liabilities, transactions, operations, and regulation. Those subsidiaries can also be used to manage criminal accountability when multiple entities within a corporate group share responsibility for a common offense. A parent, for instance, might reach a settlement with prosecutors that requires its subsidiary to plead guilty to a crime, without conviction of the parent itself—a subsidiary-only conviction (SOC). The parent will thus avoid bearing collateral consequences—such as contracting or industry bars—that would follow its own conviction. For the prosecutor, such settlements can respond to criminal law’s …

Is "Public Company" Still A Viable Regulatory Category?, George S. Georgiev

Faculty Articles

This Article suggests that the ubiquitous “public company” regulatory category, as currently constructed, has outlived its effectiveness in fulfilling core goals of the modern administrative state. An ever-expanding array of federal economic regulation hinges on public company status, but “public company” differs from most other regulatory categories in that it requires an affirmative opt-in by the subject entity. In practice, firms today become subject to public company regulation only if they need access to the public capital markets, which is much less of a business imperative than it once was due to the proliferation of private financing options. Paradoxically, then, …

The Public’S Companies, Andrew K. Jennings

Faculty Articles

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …

Disclosure Procedure, Andrew K. Jennings

Faculty Articles

Securities disclosure is a human process. Each year, public companies collectively spend over fifteen million hours producing disclosures that undergird an equities market with tens of trillions in market capitalization. The procedures they follow in doing so affect whether their disclosures contain misstatements or omissions—errors that can cause trading losses for investors, and litigation for issuers. Yet despite the importance of the disclosures that firms produce, the literature says little about how they do it, including whether they are spending too much, too little, or just enough on their disclosure procedures. To fill that gap, this Article uses original surveys …

State Securities Enforcement, Andrew K. Jennings

Faculty Articles

Each year, state securities regulators bring over twice the enforcement actions brought by the Securities and Exchange Commission, yet their work is largely missing from the literature. This Article provides an institutional account of state securities enforcement and identifies two key advantages—detection granularity and institutional decentralization—that states enjoy over their federal counterparts in policing localized frauds involving individual, often small-dollar, victims. Although states share enforcement jurisdiction with the SEC and DOJ, their enforcement activity reflects their institutional advantages and constraints and thus largely does not overlap with that of federal authorities. Instead, states serve as the nation’s residual securities enforcers, …

Follow-Up Enforcement, Andrew K. Jennings

Faculty Articles

Firms sometimes break the law. When they do, a host of government agencies have power to bring enforcement actions against them, which serve to punish past wrongs, compensate victims, disgorge unlawful gains, deter others, and prevent recidivism. Each of these purposes but one—preventing recidivism—is either met or not once the case reaches settlement. Whether recidivism will occur, however, remains uncertain at the time a case is settled. In light of that uncertainty, this Article takes a critical look at how enforcers currently address recidivism prevention—what it dubs the “clawback” approach—under which defendant firms receive penalty credit today in exchange for …

Shareholders United?, Andrew K. Jennings

Faculty Articles

Securities regulation has a way of crossing into other lanes. What public companies do is substantive regulation. How they govern themselves while doing it-or more importantly, how they disclose it-is securities regulation. So it is no surprise that the perennial concern over regulating money in politics should also become a question of federal securities regulation. The Shareholders United Act (the "Act")-passed by the House of Representatives as part of House Bill 1, an early, major piece of legislation in the 116th Congress-does just that. The Act would require that before engaging in political spending, public companies poll shareholders on how …

Securities Disclosure As Soundbite: The Case Of Ceo Pay Ratios, Steven A. Bank, George S. Georgiev

Faculty Articles

This Article analyzes the history, design, and effectiveness of the highly controversial CEO pay ratio disclosure rule, which went into effect in 2018. Based on a regulatory mandate contained in the Dodd-Frank Act of 2010, the rule requires public companies to disclose the ratio between CEO pay and median worker pay as part of their annual filings with the Securities and Exchange Commission (SEC). The seven-year rulemaking process was politically contentious and generated a level of public engagement that was virtually unprecedented in the long history of the SEC disclosure regime. The SEC sought to minimize compliance costs by providing …

Students' Perceptions Of Interactive Technology As A Learning Tool In Legal Studies Courses, Cristen W. Dutcher, Sonia J. Toson

Faculty Articles

This article attempts to further the literature on technology in the classroom by performing an initial investigation on an innovative new textbook technology in an undergraduate legal studies course, such as the Legal Environment of Business. First, we discuss the traditional methods of teaching the law at both the law school and undergraduate levels. We also review the history and effectiveness of using technology in law school and legal studies classrooms. Next, we look the use of textbooks in legal education. Then, we introduce LearnSmart, an adaptive and interactive textbook technology and compare it to other electronic texts in the …

Workplace Deviance And Recession, Aniruddha Bagchi, Siddhartha Bandyopadhyay

Faculty Articles

We examine the relationship between the incidence of workplace deviance (on-the-job crime) and the state of the economy. A worker's probability of future employment depends on whether she has been deviant as well as on the availability of jobs. Using a two period model we show that the net impact on deviant behavior to changes in unemployment can go either way depending upon the nature of the equilibrium. Two kinds of equilibria are possible. In one, a non-deviant's probability of being employed increases as expected market conditions improve which lowers the incentive to be a deviant. In contrast, in the …

Constructions Of Citizenship Among Multinational Corporations, Gail L. Markle

Faculty Articles

Using social contract theory as a foundation I examined the ways in which four multinational corporations use disclosures of corporate social responsibility to present themselves as good corporate citizens. Several factors influence a corporation’s use of CSR: size of the corporation, public visibility, personal commitment of high ranking executives, location of manufacturing operations, and types of stakeholders. There is a significant difference in the responsibilities and obligations Proctor & Gamble, Kimberly-Clark, and Colgate-Palmolive ascribe to themselves as corporate citizens compared to those of SC Johnson. I attribute this difference to one of stakeholder accountability, specifically public shareholders. The three publicly …

The Foreign Corrupt Practices Act: Insights For Internal Auditors, Audrey A. Gramling, Dana R. Hermanson, Heather M. Hermanson

Faculty Articles

Douglas Faggioli, president and CEO of Nature's Sunshine Products (NSP) made the above remarks as he accepted, on behalf of NSP, a 2004 "100 Best Corporate Citizens" award from Business Ethics magazine. NSP received the award two years in a row. Less than two years later, NSP would discover a bribery scheme in its Brazil operations that would expose it to Securities and Exchange Commission (SEC) enforcement under the Foreign Corrupt Practices Act (FCPA). Faggioli and the company's CFO, Craig Huff, along with NSP, would be plaintiffs in a class action lawsuit, and the SEC would fine each officer $25,000. …

Did Sarbanes-Oxley Lead To Better Financial Reporting?, Dennis Chambers, Dana R. Hermanson, Jeff L. Payne

Faculty Articles

The article describes and summarizes five studies that examined whether the landmark Sarbanes-Oxley Act of 2002 (SOX) was beneficial or not to financial reporting. The U.S. Congress is stated to have passed the legislation on July 25, 2002 in reaction to a series of financial accounting scandals involving such companies as Enron and WorldCom, as well as the demise of the accounting firm Arthur Andersen LLP. The author asserts that all five of the studies provide evidence of a significant improvement in the financial reporting environment since SOX.

Quality Control Defects Revealed In Smaller Firms' Pcaob Inspection Reports, Dana R. Hermanson, Richard W. Houston

Faculty Articles

The article reports the study of Public Company Accounting Oversight Board (PCAOB) on the quality control (QC) defects of small audit firms. Topics including the accounting lapses of small auditing firms, tips on complying QC standards and importance of inspection on the auditing industry are discussed. Study reveals that smaller firms have deficient processes in conducting audit quality. The article notes that PCAOB is expected to increase campaign in assisting audit firms while small audit firms are encouraged to address their QC deficiencies.

How Sales Executives Can Avoid Accounting Fraud Allegations, Mark S. Beasley, Dana R. Hermanson

Faculty Articles

Is accounting fraud only a concern for CEOs and financial executives? This article discusses recent cases in which the Securities and Exchange Commission (SEC) charged Sales Vice Presidents for their role in accounting fraud. The authors offer suggestions to help sales executives steer clear of accounting fraud allegations.

The Fraud Diamond: Considering The Four Elements Of Fraud, David T. Wolfe, Dana R. Hermanson

Faculty Articles

Focuses on the use of the elements of the fraud diamond to prevent and detect accounting fraud. Essential traits for committing fraud; Steps in assessing fraud risk through the use of the fourth element of the diamond; Ways for auditors to prevent potential fraud.

Going Beyond Sarbanes-Oxley Compliance: Five Keys To Creating Value, Mark S. Beasley, Dana R. Hermanson

Faculty Articles

Discusses the factors involved in implementing Sarbanes-Oxley Act of 2002 for U.S. accounting firms. Appreciation of the goal behind the law; Comprehension of the accounting fraud; Aggressiveness in addressing ethical attitudes and rationalization.

Young Cpas Remain Undaunted By Scandals, Heather M. Hermanson, Mary C. Hill, Susan H. Ivancevich

Faculty Articles

Did the demise of Arthur Andersen and the related fallout affect the satisfaction of entry-level accountants at Big Four firms? The answer appears to be "no." Despite the considerable negative press focused on the profession, entry-level accountants still assess positively the profession and their careers. The authors followed the careers of 32 new hires from the summer of 2000, assessing their job satisfaction every 6 months. Job satisfaction remained stable over the period just before and after the Andersen collapse. Despite the negative press, respondents indicated that their firm is operating much as it had in the past. The relatively …

Top 10 Audit Deficiencies, Mark S. Beasley, Joseph V. Carcello, Dana R. Hermanson

Faculty Articles

The article focuses on financial statement fraud based on cases wherein the U.S. Securities and Exchange Commission sanctioned auditors for their association with fraudulent financial statements. All of the cases involved public companies, most of which engaged ill fraudulent financial reporting. Only a few engaged in misappropriation of assets or defalcation. The most common problem, alleged in 90% of the cases, was the auditor's failure to gather sufficient evidence. In some instances, this failure was pervasive throughout the engagement while in other instances the allegations were more specific. For example, many of the cases involved inadequate evidence in the areas …

Preventing Fraudulent Financial Reporting, Mark S. Beasley, Joseph V. Carcello, Dana R. Hermanson

Faculty Articles

Provides information on a study conducted by the Committee of Sponsoring Organizations regarding the detection and prevention of financial fraud. Discussion on the nature of financial frauds; Characteristics of unreliable financial reporting; Views on the role of auditing firms in the prevention of fraud.

Just Say 'No', Mark S. Beasley, Joseph V. Carcello, Dana R. Hermanson

Faculty Articles

The article discusses the prevention of financial fraud within corporations and businesses in the United States. The types of individuals named in the U.S. Securities and Exchange Commission (SEC) files are examined. Different fraud techniques are looked at, including sham sales, the recording of conditional sales, and unauthorized shipments. The author discusses the status of firms after fraud disclosure and the implications it has for finance professionals.

Franchisor Environmental Liability For Previously Contaminated Property, Patrick J. Kaufmann, William S. Vincent

Faculty Articles

Environmental legislation has created potential liability for retailing franchisees that purchase previously contaminated land. Faced with a decision to distance itself from the site selection process or incur the added costs and potential pricing impacts of greater involvement in the process, franchisors have strong incentives to reduce franchisee support. This reduction in support has detrimental implications for both franchise policy and environmental policy. A paper reports the results of an empirical study that links franchisors' concerns about potential environmental liability to actions to distance themselves from the site selection process or, alternatively, formally to require franchisee environmental investigation of all …

Workable Antitrust Law: The Statutory Approach To Antitrust, Thomas C. Arthur

Faculty Articles

This Article will demonstrate the superiority of the statutory approach for producing more stable and consistent antitrust law. Part I details the development of the constitutional approach to antitrust, demonstrating how the rise of the pragmatic and instrumentalist view of law led to the displacement of the original statutory approach to antitrust. Part II illustrates that the constitutional approach fundamentally cannot produce workable antitrust law. It summarizes both the doctrinal disarray that continues to plague each major area of antitrust law and the irreconcilable policy prescriptions of the contending antitrust "schools." Part III presents an alternative, statutory approach to antitrust …