Villanova law review最新文献_第3页

Managing and Monitoring Conflicts of Interest: Empowering the Outside Directors with Independent Counsel 管理和监督利益冲突:赋予外部董事独立法律顾问的权力

Villanova law review Pub Date : 2003-11-26 DOI: 10.2139/SSRN.473264

James D. Cox

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引用次数: 25

Enron, Sarbanes-Oxley and Accounting: Rules Versus Principles Versus Rents 安然、萨班斯-奥克斯利法案和会计:规则、原则和租金

Villanova law review Pub Date : 2003-11-26 DOI: 10.2139/SSRN.473242

W. Bratton

{"title":"Enron, Sarbanes-Oxley and Accounting: Rules Versus Principles Versus Rents","authors":"W. Bratton","doi":"10.2139/SSRN.473242","DOIUrl":"https://doi.org/10.2139/SSRN.473242","url":null,"abstract":"In our self-regulatory system of corporate law, the job of insisting on trustworthy numbers devolves in the first instance on the gatekeepers. It follows that the auditors take the brunt of the blame and that the Sarbanes-Oxley Act (the \"Act\"), the legislation intended to address the scandals and restore confidence in the securities markets, responds by regulating the accounting profession. More accurately, Sarbanes-Oxley triggers the start of a political process intended over time to produce a new regulatory regime. The statute follows the standard regulatory strategy of delegating most of the task of devising the new regime's terms to an administrative agency, a new Public Oversight Board (POB). The regulatory outcome remains open accordingly. High financial stakes imply an ongoing political contest over the POB's political and institutional gestalt and the terms of any new regulation. The resulting uncertainty, although regrettable, probably could not have been avoided. Unfortunately, Sarbanes-Oxley does not stop with an open-ended delegation of authority respecting the audit function to a new agency. The Act goes on to address the substance of Generally Accepted Accounting Principles (GAAP). It does this first in section 108(d), which requires the SEC to study the accounting system to ascertain the extent to which it is \"principles-based,\" as opposed to \"rules-based,\" and to tell us how long it will take for us to achieve a \"principles-based\" system; and second, in section 108(a), which requires the Financial Accounting Standards Board (FASB) and any other approved standards-setting body to adopt procedures ensuring prompt consideration of new rules reflecting \"international convergence on high quality accounting standards.\" Given an ongoing political contest respecting the shape of the POB and its regulatory program, critical questions need to be asked about these substantive initiatives. More particularly, this Article asks whether substantive intervention into the articulation of GAAP could trigger just the sort of regulatory error that the agency delegation model, followed in respect of the POB, was intended to avoid. \"Principles-based accounting\" and \"international convergence,\" however desirable in the abstract, have to be considered in light of the institutional contexts in which they would operate and effect consequences. \"Principles\" and \"convergence,\" by themselves do little to constrain rent-seeking behavior on the part of managers and auditors. Absent antecedent institutional reform that ensures auditor independence and lessens the negative impact of rent-seeking and influence activity on audit quality, perverse effects could follow in the event that sections 108(d) and 108(a) influence GAAP's future shape. Unfortunately, Sarbanes-Oxley does not ensure the requisite institutional reform; it merely holds out the possibility of reform. Part I describes Sarbanes-Oxley's delegation to the POB, surveying the issues the Act leaves open ","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"48 1","pages":"1023"},"PeriodicalIF":0.0,"publicationDate":"2003-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 70

Enron - When All Systems Fail: Creative Destruction or Roadmap to Corporate Governance Reform? 安然——当所有系统都失灵时:创造性破坏还是公司治理改革的路线图?

Villanova law review Pub Date : 2003-11-26 DOI: 10.2139/SSRN.473205

Douglas M. Branson

{"title":"Enron - When All Systems Fail: Creative Destruction or Roadmap to Corporate Governance Reform?","authors":"Douglas M. Branson","doi":"10.2139/SSRN.473205","DOIUrl":"https://doi.org/10.2139/SSRN.473205","url":null,"abstract":"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 large only a few meaningful reforms have resulted, and those with significant costs (such as federalization of key aspects of corporate governance). One suggested pathway to meaningful reform would have been to take an enabling approach rather than the regulatory, even punitive, one that Sarbanes-Oxley encapsulates. The enabling approach would focus on the positive side of corporate governance, which over has improved dramatically in the United States over the last 20 years, principally through the predominance of independent directors. The article suggest several measures that could be taken to enhance the positive in corporate governance, including several lessons from the Enron board's operation that thus far have been ignored. The conclusion reached is that Enron's most meaningful contribution to our political economy is neither Sarbanes-Oxley nor the enabling reforms suggested. Enron's contribution instead is creative destruction of a different kind, namely, creative destruction of what Professor William Bratton terms the \"winning culture,\" or what the author terms the culture of the \"good deal exemption,\" and the countless moral hazards that those cultural viewpoints spawned.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"48 1","pages":"989"},"PeriodicalIF":0.0,"publicationDate":"2003-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744702","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 21

Constricting Products Liability: Reforms in Theory and Procedure 约束产品责任:理论与程序的改革

Villanova law review Pub Date : 2003-10-14 DOI: 10.2139/SSRN.448080

Frank J. Vandall

引用次数: 0

Between Sanctity and Depravity: Law and Human Nature in Martin Luther's Two Kingdoms 在圣洁与堕落之间:马丁·路德《两个王国》中的法律与人性

Villanova law review Pub Date : 2003-09-30 DOI: 10.2139/SSRN.447881

John Witte

引用次数: 0

Enron: A Financial Reporting Failure? 安然:财务报告失败?

Villanova law review Pub Date : 2003-07-11 DOI: 10.2139/SSRN.418920

A. H. Catanach, Shelley Rhoades-Catanach

{"title":"Enron: A Financial Reporting Failure?","authors":"A. H. Catanach, Shelley Rhoades-Catanach","doi":"10.2139/SSRN.418920","DOIUrl":"https://doi.org/10.2139/SSRN.418920","url":null,"abstract":"The dramatic collapse of Enron Corporation, following a series of disclosures of accounting improprieties, has led many to question the soundness of current accounting and financial reporting standards. Within Enron's reported financial statements, including related note disclosures, were there signs of Enron's accounting and economic issues? Should an astute investor or analyst have been suspicious of Enron's reported results? How did management hide debt, inflate profits, and support a stock price that considerably overstated the firm's value? Did Enron incorrectly apply existing standards, or do these rules permit the accounting \"gimmickry\" that allowed Enron to obscure its true financial position? This paper attempts to answer these questions by examining the two financial reporting issues that contributed to Enron's most significant accounting restatements: the consolidation of special purpose entities (SPEs) and the issuance of stock for notes receivable. First, we examine Enron's financial performance during the 10 years prior to its declaration of bankruptcy. This analysis reveals increasing variability of key performance measures from 1997 through 2000, a time during which Enron's stock price generally outperformed the NASDAQ composite. Additionally, using metrics developed to measure the likelihood of earnings management, we find a high probability of earnings manipulation in Enron's financial statements for several years preceding its bankruptcy. These results are particularly surprising because they are based on Enron's reported financial results, which we now know were erroneous. This investigation suggests that considerable evidence existed that should have lead analysts, sophisticated investors, and regulators to question Enron's financial results and soaring stock price. Next, we briefly describe the accounting and financial reporting standards applicable to Enron's consolidation of SPEs and issuance of stock for notes receivable. We specifically discuss three major sets of transactions in which Enron created SPEs to hold assets, borrow money, and hedge fluctuations in the value of its investment activities. In each case, we identify whether Enron's treatment of these SPEs complied with or failed to meet the requirements of existing accounting principles. We also discuss the impact of these transactions on Enron's true financial position and how its reporting of these transactions obscured their economic substance. Several of these transactions involved Enron exchanging its own stock for notes receivable from the SPEs. The financial reporting implications of these transactions also are discussed. We conclude with a summary of important issues for consideration by accounting standard setters.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"48 1","pages":"1057"},"PeriodicalIF":0.0,"publicationDate":"2003-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.418920","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68722213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 25

Is There a Role for Lawyers in Preventing Future Enrons 律师在防止未来的“安然”中是否有作用

Villanova law review Pub Date : 2003-03-03 DOI: 10.2139/SSRN.367661

Jill E. Fisch, K. Rosen

{"title":"Is There a Role for Lawyers in Preventing Future Enrons","authors":"Jill E. Fisch, K. Rosen","doi":"10.2139/SSRN.367661","DOIUrl":"https://doi.org/10.2139/SSRN.367661","url":null,"abstract":"Following the collapse of Enron Corporation, the ethical obligations of corporate attorneys have received increased scrutiny. The Sarbanes-Oxley Act of 2002, enacted in response to calls for corporate reform, specifically requires the Securities and Exchange Commission to address the lawyer's role by requiring covered attorneys to report up evidence of corporate wrongdoing to key corporate officers, and, in some circumstances, to the board of directors. Failure to report up subjects a lawyer to liability under federal law. This article argues that the reporting up requirement reflects a second-best approach to corporate governance reform. Rather than focusing on the actors that traditionally control a corporation's activities, the statute attempts to solve governance problems indirectly by assigning to the lawyer the role of corporate gatekeeper and information intermediary. We demonstrate that the reporting up requirement fails to address the incentives that motivate corporate attorneys, directors, and managers. At the same time, the provision threatens to undermine the flow of information between lawyers and corporate actors. As a consequence, we suggest that the requirement is unlikely to achieve its objective of providing key corporate decisionmakers with early information about potential misconduct. Moreover, attorney and manager responses to the reporting up requirement are likely to reduce the quality of legal services provided to the corporation. Based on this cost-benefit analysis, we conclude that the Sarbanes-Oxley approach to corporate governance reform is flawed. Instead, we argue that a demand side approach is most likely to realign corporate attorney incentives and to reinvigorate the business lawyer's important role in promoting good corporate governance. Toward that end, we identify specific reforms tailored to increasing the incentives for corporate officers and directors to demand and obtain better legal advice.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"48 1","pages":"1097"},"PeriodicalIF":0.0,"publicationDate":"2003-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68621855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 19

Electrifying Copyright Norms and Making Cyberspace More Like a Book 电气化版权规范，让网络空间更像一本书

Villanova law review Pub Date : 2003-02-27 DOI: 10.2139/SSRN.368180

Ann Bartow

{"title":"Electrifying Copyright Norms and Making Cyberspace More Like a Book","authors":"Ann Bartow","doi":"10.2139/SSRN.368180","DOIUrl":"https://doi.org/10.2139/SSRN.368180","url":null,"abstract":"The first half of this Article charts the evolving but eminently ascertainable social norms of the use of analog copyrighted works by individuals, and characterizes these norms as \"what is\" in real space and \"what ought to be\" in cyberspace. The Author argues that while \"what is\" in the analog world may be imperfect, uncertain and unsatisfactory at times, it represents a discernible practical equilibrium upon which copyright holders' ability to control and extract income from their works is balanced against the rights of fair users. Authors, content distributors and users all make decisions within a familiar longstanding copyright framework, within which lots of small scale unauthorized copying occurs, but content creation and distribution is still adequately incentivized. Nevertheless, \"what is\" in terms of real space copyright use norms is not making the transition to cyberspace, and will not, absent legislative intervention. Instead, copyright owners are using the attributes of digitalization to realize their own normative view of \"what ought to be,\" absolute control over copyrighted works that are embodied in electronic formats. Using the specific example of non-profit libraries, the second half of this Article explains how society will suffer if analog copyright use norms are not electrified and \"what is\" becomes dramatically altered in the digital domain: Individuals will lose traditional levels of access to informational works and be deprived of familiar ways and means of using copyrighted works. In consequence, their respect for copyrights is likely to erode as the distributive goals of the copyright system are correspondingly unfulfilled.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"48 1","pages":"13"},"PeriodicalIF":0.0,"publicationDate":"2003-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68622737","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 31

The Sarbanes-Oxley Act and the Reinvention of Corporate Governance? 萨班斯-奥克斯利法案与公司治理的重塑?

Villanova law review Pub Date : 2003-01-01 DOI: 10.2139/ssrn.474761

Ezra Wasserman Mitchell

{"title":"The Sarbanes-Oxley Act and the Reinvention of Corporate Governance?","authors":"Ezra Wasserman Mitchell","doi":"10.2139/ssrn.474761","DOIUrl":"https://doi.org/10.2139/ssrn.474761","url":null,"abstract":"The Sarbanes-Oxley Act (the Act), signed into law by President Bush in July 2002, creates the need to re-think the way we approach our study of corporate governance in two ways and has the potential (depending upon the results of, and actions taken in response to, various studies that are required to be completed under that Act during the next year) dramatically to change the way we think about, write about and teach corporate law. The Act makes three specific changes in the way we think about corporate governance: first, it brings into the realm of internal governance the gatekeepers that once stood outside the box, including auditors, analysts and lawyers. Second, it significantly enhances the legal status of, and centrality of corporate governance to, the chief executive officer and the audit committee, two constituents that have received very little recognition in the law and its literature. Third, both in doing this and in other respects (like the prohibition of loans to officers and certain other conflict of interest transactions), it federalizes an important dimension of the internal laws of corporate governance, creating a new (albeit arguably narrow) duty of care for the CEO and audit committee and reintroducing serious prohibitions on conflict of interest transactions that have eroded to nothingness in the hands of the Delaware judiciary and legislature. In Part I, I set the background of the traditional roles of the gatekeepers now to be brought within the gates. Part II explains how the Act and the regulations link up these gatekeepers with aspects of corporate governance traditionally treated as internal to the corporation and their potential effects on corporate governance. The message is that it is finally time for scholars of corporate governance to look inside the corporate box, not just at the structure, in order to understand and evaluate the important linkages between outside parties, corporate structure and actual corporate behavior. Part III concludes with a more detailed examination of the ways in which the Act has the potential to defeat the hegemony of finance over business and, in the process, reverse the ethic of stock price shorttermism to long-run business management, as well as the ways in which this not only will benefit corporations and their shareholders but their constellation of constituents as well. These insights are necessarily speculative. The Act is new. Regulations are in the process of being adopted. We have hardly begun to sort through the various causes of the corporate crisis of 2002. Moreover, corporate managers, investment bankers, accountants and lawyers have shown themselves to be enormously adept at evading the substance of regulation even as they may comply with its form. In the absence of detailed regulation and vigorous enforcement, the Act could turn out to be so much sound and fury signifying nothing. I therefore present these observations in the spirit of suggesting what the Sarbanes-Oxley A","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744318","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Infected judgment: legal responses to physician bias. 受感染的判断:对医生偏见的法律回应。

Villanova law review Pub Date : 2003-01-01

Mary Crossley

引用次数: 0