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Week of September 20, 2009 - September 26, 2009

Changing Board Rooms from the Inside


Prof. Emma Coleman Jordan, of Georgetown Law Center, has a shocking (in traditional corporate law circles) idea:

put a public representative in the boardrooms of "systemically important" firms.  You know, the kind that taxpayers are going to have to bail out if/when doomsday comes.
(see http://blogs.law.harvard.edu/corpgov/   you'll need to scroll down)

This is why it's so titillating for the gray lawyer types:

the theory of corporate governance is to let management do what it wants, deferring to their "business judgment," so that capitalism may flourish -- within certain guidelines.  No fraud, no self dealing, no gross negligence.  Further, the board's fiduciary duties are to the shareholders  alone; it is to them they must act with good faith, in their best interests.  But government won't ordinarily step in when management goofs up (no matter how big the goof) as long as no one's lied outright or dunked his hand in the corporate cookie jar to buy that new rolls for the third wife.

It's a hypocritical standard; you and me and anyone else will get sued if we're negligent and someone gets hurt.  Corporate management? Gross negligence may not even be enough, because most states allow corporations to write in immunities for gross negligence in their charters.  

In summary: corporate management's only duty is to shareholders, and at that, they can act with impunity, absent fraud and self-dealing.  The law has operated thus for a hundred years, at least.

To illustrate, boards do not violate corporate law -- as it exists now -- when they take excessive risk with the goal of maximizing short term profit. Case in point: Citibank gets away with underwriting subprimes and running the company into the dirt.  

Nowhere in this equation is room for the board to consider: public interest; employee's interest; environmental interest--or, indeed, the interests of any other constituent.  Of course, if you get a nice board, they'll protect the environment and employees because they think it will, ultimately, be good for shareholders.  but you're depending, essentially, on their good will.
So Prof. Jordan's suggestion is bold, and I am so very happy to have a respected jurist actually speak, out loud, of our emperor's state of undress.

Imagine, reserving a seat on the board for a constituency other than shareholders.  For the taxpayers that will, potentially, have to bail their asses out.

Meandering Thoughts on G-20


We have a great opportunity, rising from the ashes of this crisis, to come up with a global securities/financial products regulatory governance structure that might actually get a grip on the world in the 21st century.  Because, I suppose, the Asian currency crisis in the 1990s wasn't enough to scare the crap out of anyone.  We had to wait until Lehman and Bear fell.  I only hope that the G-20 will give the SEC and its foreign counterparts the go-ahead to start drafting us some coordinated regulation. 

Also at the summit, the U.S. pledged -- all hortatory of course --  to cut imports and consumer spending, and obtained  a counter promise from China to start building its own domestic demand.  The aim, obviously, to do *something* about the gigantic trade imbalances that...remind one, in a very frightening way... of that little Thai Bhat crisis of 10 years ago.  Except a million times bigger.

 And they all agree that the IMF will monitor the progress of our promises and assurances, and that they would open books and records for member-country review and observation.  This is where I get confused.

First, the IMF already monitors trade imbalances and slaps countries around when their pegged currencies get a little too ridiculous. That's like, um, its purpose.  And...since a country's voice and power over the IMF, like that of its sister Bretton Woods institution, correlates directly with how much that country pays in...Well, it's all sort of like the U.S. promising to be what it already is.   I suppose Obama is hoping that everyone is so confused as to what the IMF does that we'll all walk away happy....sort of like when they talk about monetary policy at the Fed.  Until it all falls apart. 

Second.  I don't suppose anyone remembers, wayyyy back before 9-11, that the world sat down and came up with the Millennium Development Goals, to, inter alia, end extreme poverty (bono anyone?), improve womens rights, and save the environment.  All they could think to do to make sure countries' honored their promises was to insert some sort of peer pressure -- lots of countries' agreed, and ostensibly would want to save face instead of reneging.  Instead of forming a real treaty.

So, like, that turned out real well.
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