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.
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.











