Business Scholarship Podcast

Verity Winship, professor of law at the University of Illinois, joins the Business Scholarship Podcast to discuss her new article Enforcement Networks. In this article, Winship presents an empirical network analysis of acknowledgments in SEC litigation and press releases. These acknowledgments shed light on how the SEC sources enforcement actions, including through referrals from the FBI, FINRA, and even small-town police departments. In presenting these findings, Winship demonstrates a method that can be extended for reaching deeper understanding of cross-agency interactions.

Jeremy Kress, assistant professor of business law at the University of Michigan Ross School of Business, and Matthew Turk, assistant professor of business law and ethics at Indiana University Kelly School of Business, join the Business Scholarship Podcast to discuss their forthcoming article Too Many to Fail: Against Community Bank Deregulation. In their article Kress and Turk identify myths about community banking that have been used to justify that sector’s deregulation and explain why deregulation increases the risk of future community-bank failures.

Michael Cappucci, managing director for compliance and sustainable investing at Harvard Management Company, joins the Business Scholarship Podcast to discuss his new paper The Proxy War against Proxy Advisors. In this paper, Cappucci traces the growing influence of proxy advisors and addresses common criticisms about their business practices, accuracy, and role within U.S. corporate governance. He considers recent proposed regulations affecting the proxy-advisor industry and evaluates their likely effects on corporate governance and institutional shareholders and asset managers.

Letian Zhang, assistant professor of business administration at Harvard Business School, joins the Business Scholarship Podcast to discuss his working paper Shaking Things Up: Unintended Consequences of Firm Acquisitions on Racial and Gender Inequality. In this paper, Zhang uses EEOC data to examine the effects of mergers on racial and gender equality in acquired companies. He finds that although mergers may exacerbate inequality between high-skill and low-skill workers, they are associated with reductions in racial and gender inequality.

On January 21, 2010, the Supreme Court issued its decision in Citizens United v. FEC. 558 U.S. 310. As sometimes happens when modest facts reach courts of last resort, Citizens United immediately eclipsed the controversy at hand. A case about a non-profit organization’s production of Hillary: The Movie, a little-seen documentary on then-Senator Hillary Clinton, became an early flashpoint in a decade of political conflict that coincided with, or that was perhaps fueled by, substantial increases in direct political spending by groups outside traditional campaign and party committees.

Late last year, Sarah Haan suggested marking on this show the ten-year anniversary of that momentous decision. That excellent suggestion led to this Citizens United at 10 podcast symposium. Of course, the seriatim-speakers-in-a-room structure of a traditional symposium required some adjusting for the podcast format. Instead, I pre-recorded seven interviews, to be released on this ten-year anniversary, with scholars who have spent part of the past decade working on Citizens United and its implications for corporate law, money in politics, and American democracy. Each guest brings a different set of insights and observations, and I am excited to share the full program with the listeners.

Political scientists Anna Harvey and Michael Rocca join to discuss empirical research and findings stemming from Citizens United. Five legal scholars–Kent Greenfield, Sarah Haan, Elizabeth Pollman, Ciara Torres-Spelliscy, and Anne Tucker–join to discuss the case’s corporate-law and constitutional consequences. I ask the legal scholars a common set of questions: (1) tell me about your work in this area over the last decade, (2) what’s surprised you or not surprised you in that time, and (3) what are you watching for or predicting over the next ten years? Although common themes, and sometimes areas of disagreement, emerge in the answers, each guest speaks from a unique vantage and is watching for different developments over the next decade.

These differences–especially for the final prospective question–and a modest two-hour runtime recommend a full listen to the symposium. The interviews are available below this foreword and on all major podcast services. As always, if you like what you hear, please consider subscribing to the podcast or sharing with others who might like it too. And if you have ideas for future episodes, let me know at andrew@andrewkjennings.com. Thank you for listening.

–Andrew Jennings, Creator/Host, Business Scholarship Podcast

Kent Greenfield

Kent Greenfield, professor of law at Boston College, joins the Business Scholarship Podcast Citizens United at 10 podcast symposium to discuss his work on Citizens United and the decision’s implications for corporate law, money in politics, and American democracy. Works discussed include Corporations Are People Too (And They Should Act Like It).

In addition to discussing his scholarship, Greenfield reflects on the tenth anniversary of Citizens United, including what’s surprised him, what hasn’t, and what he is watching over the next ten years.

Sarah Haan

Sarah Haan, associate professor of law at Washington & Lee University, joins the Business Scholarship Podcast Citizens United at 10 podcast symposium to discuss her work on Citizens United and the decision’s implications for corporate law, money in politics, and American democracy. Works discussed include Voter Primacy and Shareholder Proposal Settlements and the Private Ordering of Public Elections.

In addition to discussing her scholarship, Haan reflects on the tenth anniversary of Citizens United, including what’s surprised her, what hasn’t, and what she is watching over the next ten years.

Anna Harvey

Anna Harvey, professor of politics at New York University, joins the Business Scholarship Podcast Citizens United at 10 podcast symposium to discuss her article Does Money Have a Conservative Bias? Estimating the Causal Impact of Citizens United on State Legislative Preferences. In this article, Harvey and her co-author find that after Citizens United not only did states whose campaign-finance laws were affected by the decision see flips in control of legislative seats, but also that elected Republican legislators held more conservative policy preferences.

Elizabeth Pollman

Elizabeth Pollman, professor of law at the University of Pennsylvania, joins the Business Scholarship Podcast Citizens United at 10 podcast symposium to discuss her work on Citizens United and the decision’s implications for corporate law, money in politics, and American democracy. Works discussed include Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech, A Corporate Right to Privacy, The Derivative Nature of Corporate Constitutional Rights, and Constitutionalizing Corporate Law.

In addition to discussing her scholarship, Pollman reflects on the tenth anniversary of Citizens United, including what’s surprised her, what hasn’t, and what she is watching over the next ten years.

Michael Rocca

Michael Rocca, associate professor of political science at the University of New Mexico, joins the Business Scholarship Podcast Citizens United at 10 podcast symposium to discuss his articles The Effects of Citizens United on Corporate Spending in the 2012 Presidential Election and The Impact of Citizens United on Large Corporations and Their Employees. In these articles, Rocca and his co-authors find that the Citizens United decision did not lead to observable increases in direct campaign spending by firms or their employees, although it did mark a substantial increase in expenditures by a small set of high-spending individuals.

Ciara Torres-Spelliscy

Ciara Torres-Spelliscy, professor of law at Stetson University, joins the Business Scholarship Podcast Citizens United at 10 podcast symposium to discuss her work on Citizens United and the decision’s implications for corporate law, money in politics, and American democracy. Works discussed include Corporate Citizen? An Argument for the Separation of Corporation and State and Political Brands.

In addition to discussing her scholarship, Torres-Spelliscy reflects on the tenth anniversary of Citizens United, including what’s surprised her, what hasn’t, and what she is watching over the next ten years.

Anne Tucker

Anne Tucker, associate professor of law at Georgia State University, joins the Business Scholarship Podcast Citizens United at 10 podcast symposium to discuss her work on Citizens United and the decision’s implications for corporate law, money in politics, and American democracy. Works discussed include Flawed Assumptions: A Corporate Law Analysis of Free Speech and Corporate Personhood in Citizens United, Rational Coercion: Citizens United and a Modern Day Prisoner’s Dilemma, The Citizen Shareholder: Modernizing the Agency Paradigm to Reflect How and Why a Majority of Americans Invest in the Market, and Locked In: The Competitive Disadvantage of Citizen Shareholders.

In addition to discussing her scholarship, Tucker reflects on the tenth anniversary of Citizens United, including what’s surprised her, what hasn’t, and what she is watching over the next ten years.

Elizabeth Pollman, professor of law at the University of Pennsylvania, joins the Business Scholarship Podcast to discuss her forthcoming article Startup Governance. In this article, Pollman offers a framework for understanding governance issues unique to startup firms, including complicated vertical and horizontal principal-agent conflicts that can accrete over multiple funding rounds.

Omari Scott Simmons, professor of business law at Wake Forest University, joins the Business Scholarship Podcast to discuss his forthcoming article Forgotten Gatekeepers: Executive Search Firms and Corporate Governance. In this article, Simmons introduces the history, role, and practice of executive-search firms (ESFs), firms that help companies source and recruit senior executives and directors. He further makes the case that, similar to compensation consultants and proxy firms, ESFs are a significant player in a trend toward outsourcing corporate governance.

Menesh Patel, acting professor of law at UC Davis, joins the Business Scholarship Podcast to discuss his recent article Merger Breakups. In this article, Patel considers whether and when antitrust agencies should challenge consummated mergers that were previously reviewed and cleared through the Hart-Scott-Rodino process. This question in turn interacts with contemporary conversations about antitrust enforcement, particularly in the technology sector.

Jessica Erickson, professor of law at the University of Richmond, joins the Business Scholarship Podcast to discuss her article Automating Securities Class Action Settlements. In the article, Erickson explores a contradiction in securities class-action settlements: although Civil Rule 23 defaults to opt-out class membership, the difficulty of identifying securities class members makes settlement administration effectively opt-in. She proposes two solutions for overcoming this problem: a market-based approach involving banks and brokers, and a regulatory approach using the SEC’s forthcoming consolidated audit trail.

Joseph Grundfest, professor of law and business at Stanford University, joins the Business Scholarship Podcast to discuss his recent article The Limits of Delaware Corporate Law: Internal Affairs, Federal Forum Provisions, and Sciabacucchi.

He explains that the Chancery Court’s Sciabacucchi decision erroneously held Securities Act claims to be external to a corporation’s governance, meaning that charters cannot require securities claims to be filed in federal, rather than state, court. He notes that this holding was not only wrong as a matter of Delaware law, but it also raises troubling federalism questions and could lead to higher D&O insurance premia.

Sarah Haan, associate professor of law at Washington and Lee University, joins the Business Scholarship Podcast to discuss her article Civil Rights and Shareholder Activism: SEC v. Medical Committee for Human Rights. Haan traces the civil-rights roots of shareholder activism and chronicles the legal history of SEC v. Medical Committee for Human Rights, a case stemming from activists’ opposition to Dow Chemical’s manufacture of napalm during the Vietnam War era. Although Medical Committee receded from memory after it was vacated as moot by the Supreme Court, Haan explains how it can inform contemporary debates over the meaning of corporate democracy.

Gina-Gail Fletcher, associate professor at Indiana University Maurer School of Law, joins the Business Scholarship Podcast to discuss her forthcoming article Engineered Credit Default Swaps: Innovative or Manipulative?. Fletcher’s article examines the phenomenon of engineered credit-default-swap transactions. In these transactions, CDS buyers or sellers induce borrowers either to default or avoid default on debt referenced by CDS contracts, thus allowing them to directly affect the values of the contracts. Fletcher considers the costs and benefits of this controversial practice and sketches possible regulatory and market responses to it.

Gregory Shill, associate professor of law at the University of Iowa, joins the Business Scholarship Podcast to discuss his article Should Law Subsidize Driving?. In this article and a companion piece in The Atlantic, Shill explores how law and policy subsidize driving as the dominant form of transportation.

He explains that this subsidization hurts everyone in terms of auto-related deaths, negative health effects, and quality of life, but that these costs are disproportionately borne by people of color, the disabled, and senior citizens. He offers hope, however, that rather than being preordained, these effects are the result of changeable policy choices.

Rory Van Loo, associate professor of law at Boston University, joins the Business Scholarship Podcast to discuss his recent article Regulatory Monitors: Policing Firms in the Compliance Era. He explains that regulatory agencies are not solely driven by enforcement and regulatory attorneys. Rather, large workforces of inspectors, examiners, engineers, and other professionals monitor firms day-to-day and in large part drive decisions around when and how the law is enforced and how regulation is developed.

Preeti Choudhary, associate professor of accounting at the University of Arizona, joins the Business Scholarship Podcast to discuss her recent paper Auditors’ Quantitative Materiality Judgments: Properties and Implications for Financial Reporting Reliability. In this paper, Choudhary and her co-authors use PCAOB examination data to quantify auditors’ materiality judgments. Their findings examine the effect of materiality judgments on financial-statement reliability and dispel the myth that auditors simply apply a 5%-of-net-income heuristic.

Ann Lipton, associate professor in business law at Tulane University, joins the Business Scholarship Podcast to discuss her recent article Not Everything is About Investors: The Case for Mandatory Stakeholder Disclosure. In this article, Lipton questions the use of securities filings for non-investor-centric disclosures and calls instead for disclosure by large enterprises that is rooted in social interest, rather than public-company status.

Veronica Root Martinez, professor of law at the University of Notre Dame, joins the Business Scholarship Podcast to discuss her recent article The Compliance Process. She explains why corporate compliance programs have focused on preventing and detecting legal violations yet miss the logical next steps of investigating and remediating them.

John Coyle, professor of law at the University of North Carolina, joins the Business Scholarship Podcast to discuss his recent article A Short History of the Choice-of-Law Clause. Coyle uses a historical survey of published cases and form books to trace the growth of the contractual choice-of-law clause from early domestic and commercial uses in the late 19th century through the adoption of the Uniform Commercial Code and the “Conflicts Revolution” in the 1950s and 1960s.

Jennifer Arlen, professor of law at New York University, joins the Business Scholarship Podcast to discuss her recent paper The Potential Promise and Perils of Introducing Deferred Prosecution Agreements Outside the U.S. In this paper, Arlen examines recent British and French efforts to introduce U.S.-style DPAs in corporate enforcement. She explains that although these efforts offer rule-of-law improvements over the U.S. approach, they are not yet fully aligned to helping prosecutors detect and deter corporate misconduct.

Yaron Nili, assistant professor of law at the University of Wisconsin, joins the Business Scholarship Podcast to discuss his recent article Successor CEOs. In this article, Nili explores why combo CEO/chairs sometimes give up the CEO role but remain chair of the board of directors, versus the more common transition of a CEO/chair giving up the chair.

Claire Hill, professor of law at the University of Minnesota, joins the Business Scholarship Podcast to discuss her recent article #MeToo and the Convergence of CSR and Profit Maximization. In this article, Hill explores the #MeToo movement’s implications for corporate social responsibility (CSR) and environmental, social, and governance (ESG) concerns and their potential convergence.

Benjamin Edwards, associate professor of law at the University of Nevada, Las Vegas, and Anthony Rickey, founder of Margrave Law LLC, join the Business Scholarship Podcast to discuss their recent article Uncovering the Hidden Conflicts in Securities Class Action Litigation: Lessons From the State Street Case. Edwards and Rickey examine potential plaintiff-side attorney conflicts in securities class actions that persist despite passage of reform legislation in the 1990s. They propose new litigation disclosures as a way to combat those potential conflicts.

Natasha Sarin, assistant professor of law at the University of Pennsylvania, joins the Business Scholarship Podcast to discuss her recent article Making Consumer Finance Work. Sarin analyzes the outcomes of three Dodd-Frank era reforms to explain when regulatory interventions work, when they lead to “whack-a-mole,” and how the less wealthy subsidize other consumers in consumer finance markets.

Emily Kadens, professor of law at Northwestern University, joins the Business Scholarship Podcast to discuss her recent articles Cheating Pays and The Dark Side of Reputation. In these articles, Kadens uses archival records from litigation among 17th century English merchants to examine the limits of reputation as a tool for market discipline and sanction.

Robert Anderson, professor of law at Pepperdine University, joins the Business Scholarship Podcast to discuss his new article A Property Theory of Corporate Law. In this article Anderson questions the contractarian theory of the corporation and explains why a property-based theory better accounts for some features of corporate law.