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This Article corrects widespread misconception about whether complex regulatory systems can be fairly described as either “rules-based” or “principles-based” (also called “standards-based”). Promiscuous use of these labels has proliferated in the years since the implosion of Enron Corp. While the concepts of rules and principles (or standards) are useful to classify individual provisions, they are not scalable to the level of complex regulatory systems. The Article uses examples from corporate law, securities regulation and accounting to illustrate this problematic phenomenon before turning to a series of possible explanations for the widespread use of these misleading labels. The piece contributes to the substantive fields it uses to animate the inquiry and to more general jurisprudential literature on the rules-standards question.

Congress passed the Sarbanes-Oxley Act to restore investor confidence, which had been deflated by massive business and audit failures, epitomized by the demise of the Enron Corporation and Arthur Andersen LLP. The Act altered the roles and responsibilities of auditors, corporate officers, audit committee members, as well as other participants in the financial reporting process. We evaluate the potential legal implications of some of the Act’s major provisions and anticipate participants’ likely responses. Our evaluation suggests that these provisions will significantly change behavior, increase compliance costs and alter the legal landscape. We also identify promising avenues for future research in light of the new landscape.

This Article contributes a novel idea to the literature on capital market gatekeepers: positive incentive systems for gatekeepers to perform functions not required of them in exchange for rewards if they perform the functions successfully. Capital market gatekeeping theory relies upon the reputations that gatekeepers are assumed to command and protect backstopped by negative threats of legal liability for failure to perform legally mandated functions. The ineffectiveness of many gatekeepers during the late 1990s and early 2000s revealed practical limitations of the reputational constraint and the reforms that responded to the failures continue to emphasize the legal duties and legal liability that gatekeepers face. Adversely, that emphasis discourages gatekeepers from willingness to perform desired functions—such as to detect for fraud—whereas the positive approach induces performance of such functions. Without necessarily displacing existing reputation constraints and liability strategies, adding an incentive system as a public policy lever could promote gatekeeper effectiveness and poses little downside risk.

The term "market timing" was little known outside the arcane world of mutual funds until state attorneys general from across the country popularized it. The term's innocuous-sounding ring assumed a more pernicious note when the mysterious ways of mutual funds became more transparent. In its pernicious sense, market timing denominates mutual fund insiders using the inscrutable structures of mutual funds to provide benefits selectively to favored participants at the expense of less favored participants. Mutual fund shares are not like common stocks; investments made using these vehicles are unlike those made through traditional securities markets. While the peculiar features of mutual funds were manifested in the contemporary environment, these peculiarities are inherent in the very structure of mutual funds. Regulatory efforts dating to the 1940s recognize these realities and regulatory reforms of the early 2000s struggle to respond in much the way earlier reforms did. The wide range of reforms that have been adopted and proposed may overlook this reality, however. By correcting this oversight, and unveiling the historical and contemporary landscape, this Article provides more realistic appraisals for increasing the integrity of the mutual fund investment vehicle. Chief among these is a deeper point: critical to sustaining the mutual fund as an important institution in the financial system is a renewed appreciation of concepts of trust and professionalism.

eXtensible Markup Language (XML) structures information in documentary systems ranging from financial reports to medical records and business contracts. XML standards for specific applications are developed spontaneously by self-appointed technologists or entrepreneurs. XML’s social and economic stakes are considerable, especially when developed for the private law of contracts. XML can reduce transaction costs but also limit the range of contractual expression and redefine the nature of law practice. So reliance on spontaneous development may be sub-optimal and identification of a more formal public standard setting model necessary. To exploit XML’s advantages while minimizing risks, this Article envisions creating a publicly-oriented foundation to set XML-based standards for the private law of corporate contracts. The Article’s specific inquiry concerning corporate contracts illuminates XML’s broader implications, making the standard-setting model it contributes adaptable to other contexts.

Large audit firms may believe that they are too big to fail. Arthur Andersen’s 2002 criminal indictment reduced their number from five to four, and the government decided in 2005 to avoid indicting KPMG for crimes it admitted committing. If audit firms interpret the government’s reluctance to indict as signaling aversion to tough action against them, moral hazard arises. This offsets auditing improvements mandated by the Sarbanes-Oxley Act of 2002 that are designed to strengthen auditors’ reputations with managers for thoroughness and improve financial statement reliability. Neutralizing this moral hazard requires a credible alternative industry structure so that when a large audit firm faces failure from criminal or other malfeasance, it can be allowed to exit the industry without upsetting the financial system that auditing supports. An alternative industry structure must make auditing at least as effective as it is under the current system and should provide enhancements wherever possible. Examples of enhancements include bolstering auditors’ reputations for toughness with client managers and delivering more transparent information to external users of financial information. One way to restructure the industry along these lines is through mandatory financial statement insurance. Such insurance would make it clear that no audit firm is too big to fail, promote strategic detection and deterrence in auditing, produce publicly disclosed indices of financial statement reliability, and reduce barriers to entry that potential competitors to the four large firms currently face.

The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be hard to escape. Escape occurs through a second attribute of iterative processes, called self-similarity. Self-similarity in an iterative process exists when the output of one operation closely resembles the output in the next operation. Applications of an existing rule to new disputes bear that quality when disputes generated by the rule’s initial conditions continue to be resolved in the same way. Non-self-similar applications of a rule involve departures from earlier formulations. When self-similarity dominates, the population of disputes cognizable under a rule is stable. Evolution and articulation of social norms promotes growth of non-self-similarity which threatens stability in the population of disputes. Such threats and path dependency created by initial conditions are overcome by what this Article calls judicial bifurcation, meaning a splintering of the input rule in a later dispute so that the population of disputes attracted by the population of rules regains stability. This produces a dominant systemic tendency towards stability in the population of disputes attracted by the population of rules. This systemic tendency puts limits on the systemic significance of judicial discretion. The fabric of the common law absorbs social norms, more than any idiosyncratic prejudices or tastes o

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil and administrative sanctions, yet private actors generate, control and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach and no framework exists to facilitate analysis. This Article contributes an analytical framework and, for the federal government, nominates the Director of the Federal Register to implement it. Analysis is animated using among the oldest and broadest examples of this pervasive but stealthy phenomenon: embodiment by Congress and the Securities and Exchange Commission of privately-promulgated accounting standards in public law. With accounting standards as a case study, the framework delineates three routes through which private standards are embodied in public law—denominated as strong, weak and semi-strong—and articulates associated copyright and lawmaking consequences. As to copyright, the framework mediates conflicts between public access to legal materials and private incentives to produce standards. It addresses the effect of copyright protection that biases standard setters to focus on quantity instead of quality and prevents third parties from improving standards through derivative works. As to lawmaking, the Article explains alternative governmental strategies to achieve regulatory leverage while adhering to private non-delegation doctrines and publication requirements. The Article appeals to scholars of administrative law, theorists concerned with intellectual property law and its broader political and public policy contexts, and those interested in informational and standard-setting aspects of accounting. Contributions will be of practical use to governmental officials who look to private standards in their regulatory functions, standard-setters

Controversy surrounding scholastic rankings arises, in part, because of complexities associated with measuring academic contributions. Legal researchers use various methodologies to assess scholarly production and impact but all suffer from inherent limitations and none provides data useful to scholarly self-reflection. The 10-year old Legal Scholarship Network (LSN) offers potential to improve considerably on both scores of public and personal assessment. This Essay critically evaluates approaches to conceptualizing scholarly profit margins, explores how LSN can enhance these conceptions, and opens new frontiers for this innovative Web-based repository of legal writing.

Accounting textbooks for law or business schools invariably provide secondary narrative presentations of materials in the authors’ own words. A better approach to learning this subject is to present thematically arranged original accounting pronouncements. In so designing this innovative book, readers appreciate how accounting is a tool that provides conceptual organization to economic exchange. The tool facilitates analyzing legal, business and public policy aspects of the transactions that accounting addresses. The original accounting standards, as well as SEC enforcement actions, presented in this book illuminate why transactions are pursued and related decisions made, economic aspects of transactions, and the conceptual underpinnings of the activities of measuring, classifying and reporting on them. Law and Accounting thus emphasizes the intersection of the two subjects. It is neither accounting for lawyers nor law for accountants. It is both. It is not accounting qua accounting being presented, but a conception of law and accounting bearing an authentic interdisciplinary sense. Material downloadable from this abstract consists of the book’s front matter: (1) Preface; (2) Summary, Table and Detail of Contents; (3) Table of Cases; and (4) Annotated Table of Accounting and Auditing Standards.

Intellectual tension between the fields of finance and accounting may help to explain explosion of public company frauds. Finance theory diminishes the relevance of accounting information. Enron exploited this consequence while the SEC bought into it. After widespread frauds were exposed, Congress passed laws that address symptoms of finance's futurism, not disease. Laws essentially prohibit pro forma financial reporting and regulate the selective flow of futuristic information to financial analysts. Untouched is the underlying disease of regulatory mandates requiring extensive disclosure of forward-looking information. Until the 1970s, the SEC prudently prohibited such futuristic disclosure as inherently unreliable; assisted by finance theory, the SEC's stance steadily eroded to require such disclosure. The SEC likely had it right the first time. It is too late to reverse the mandatory futuristic disclosure regime. So reform policies must work within it. After elaborating the foregoing critique, this Essay mentions two: (1) future oriented disclosure should focus on material risks of future adversity and (2) accounting figures should be reported in ranges, not single amounts.

In this pioneering book, Boston College Law School’s Academic Dean, Lawrence Cunningham, arranges selected contributions of his faculty’s scholarship into a meditation upon justice. The book weaves a combination of theory and practice to articulate moral and ethical values that facilitate rational application of law. It envisions legal arrangements imbued with commitments of the Jesuit tradition, including the dignity of persons, the common good and compassion for the poor. This reflective collection of inquiry evokes a signature motif of the BC Law faculty in dozens of different legal subjects. Materials downloadable from this abstract consist of: Table of Contents, Acknowledgements, Introduction and Index of Contributions.

Audit committees of corporate boards of directors are central to corporate governance for many corporations. Their effectiveness in supervising financial managers and overseeing the financial reporting process is important to promote reliable financial statements. This centrality suggests that it is likewise important for investors and others to have a basis for justifiable confidence in audit committee effectiveness. At present, there is no such mechanism. This Article explains why, considers a way states can provide it and assesses as low the likelihood that states will do so. In the swirling corporate governance reforms led by SOX, the SEC, SROs and PCAOB, states are playing minor roles at best. State absence leaves missing a potentially critical link in the evolving US corporate governance circle. The circle is drawn as follows: state corporation law charges boards of directors with managing corporations and authorizes board committees; SOX charges audit committees with certain tasks, including supervising external auditors; the SEC and SROs require audit committee characteristics like independence and compel disclosure; and PCAOB now requires external auditors to evaluate audit committee effectiveness. This last step could close the circle except that auditors performing this evaluation generate conflicts with state corporation law, conflicts between auditors and audit committees and face other limitations. These conflicts and limitations can be neutralized in an audit committee evaluation exercise conducted by newly-created state agencies staffed with experts in state corporation law such as retired lawyers and judges or academics. These newly-created state agencies could thus square the newly-forming corporate governance circle. The paper presents and evaluates this concept. It reviews the central role audit committees play in corporate governance; considers existing mechanisms that promote committee effectiveness—state fiduciary duties, SEC-SRO disclosure ru

This Article considers the interplay between new auditing standards governing audits of internal control over financial reporting and pre-existing legal standards governing auditor liability for audit failure. The interplay produces skewed liability incentives that, if unadjusted, threaten to impair the objective of this new control-audit regime. The regime’s objective is, in part, to provide an early warning to financial statement users when current financial statements are reliable but control weaknesses indicate material risk of a company’s future inability to produce reliable financial statements. To be meaningful, auditor disclosure of material weaknesses and potential effects is necessary. While liability rules under Section 11 of the Securities Act of 1933 will reinforce auditor incentives to provide this disclosure, liability rules under Section 10(b) of the Securities Exchange Act of 1934 will discourage auditors from providing disclosure because doing so likely makes them primary actors subject to liability rather than secondary actors not subject to liability. To address this skewed interplay between new auditing standards and pre-existing legal liability rules, the Article suggests developing a safe harbor system to protect from Section 10(b) liability auditor disclosure of forward-looking information necessary to give the early warning system meaning. The Article gives a comprehensive account of new auditing standards, noting interpretive questions, and showing a system entirely dependent on extensive auditor disclosure. It then explains how the new system expressly nullifies existing case law under Section 11 by substantially expanding required auditor disclosure of internal control conclusions and how it probably nullifies existing case law under Section 10(b), including the Supreme Court’s landmark 1994 case, Central Bank, that generally insulated auditors from Section 10(b) liability. These effects, remarkable on their own, pose limits on the early

Positioned in a lively current debate concerning how to design auditor incentives to optimize financial statement auditing, this Article presents the more ambitious financial statement insurance alternative. This breaks from the existing securities regulation framework to draw directly on insurance markets and law. Based on upon an evaluation of major structural and policy-related features of the concept, the assessment prescribes a framework to permit companies, on an experimental-basis and with investor approval, to use financial statement insurance as an optional alternative to the existing model of financial statement auditing backed by auditor liability. The financial statement insurance concept, pioneered by New York University Accounting Professor Joshua Ronen, promises considerable advantages compared to traditional financial statement auditing. As with any proposal, however, it presents challenges. This Article expands the model first sketched by Dr. Ronen, extending and interpreting it to examine its efficacy, attempting to show how certain limitations can be overcome. A chief challenge is relating state insurance law, the default applicable to insurance policies including FSI, to federal securities regulation. A general method is to develop for financial statement insurance the functional equivalent of the U.S. Trust Indenture Act of 1939 applicable to contracts governing public debt securities. This would allow substantial freedom of contract in policy terms, governed by state law, while mandating certain specific terms and establishing minimum federal parameters for others. Most other hurdles arising from the interplay between state insurance law and federal securities regulation can be overcome using disclosure, while more uncertain are issues associated with preserving insurer solvency if financial statement insurance is placed at the center of the public-company financial reporting system.

Building on companion work investigating the efficacy of financial statement insurance (FSI) as an alternative to traditional auditor liability, this Article presents the terms of a national enabling statute to implement this concept. The Model Financial Statement Insurance Act uses the architecture of the U.S. Trust Indenture Act of 1939. It authorizes issuer application for qualification, in connection with annual proxy statement filings, of policies of financial statement insurance. The Model FSI Act deems a series of provisions necessary to achieve securities law objectives to be part of all financial statement insurance policies so proposed, and requires insurers to possess characteristics relating to financial capacity, independence from issuers and adequate regulatory supervision. It empowers the U.S. Securities and Exchange Commission to issue stop orders against such applications in cases where insurers lack such qualifications. Qualifying policies are put to security holder vote and become effective when a registered public accounting firm engaged by the insurer issues an unqualified opinion that the financial statements provide a fair presentation in accordance with generally accepted accounting principles. Later-discovered material misstatements result in covered losses under the policy, administered in accordance with terms the Model FSI Act deems included, along with other tailored policy terms not in contravention of the Act. While using a United States template, the Model FSI Act is designed to be adaptable for use in other countries and jurisdictions of the world.

A thorough examination of the much ballyhooed Sarbanes-Oxley Act reveals dominantly a federal codification of extant rules, regulations, practices, and norms. Despite advertising it as "the most far-reaching reforms of American business practices since the time of FDR," a soberly apolitical view sees the Act as more sweep than reform. Important are provisions calling for nine studies; redundant but much publicized were the certification requirements imposed during the summer of 2002; other moves are mere patchwork responses to precise transgressions present in the popularized scandals. The Act is far from trivial, however. A silver bullet relates to the structure and funding of those who set the standards for auditing and accounting in the United States. Stripped of power is the AICPA, and altered in funding structure is the FASB. All parties but Congress are singled out for a wrist-slapping (auditors, accountants, officers, directors and committee members, lawyers, securities analysts, credit rating agencies, investment banks and financial advisors, state corporate lawmakers, the SEC, the Federal Sentencing Commission and even the Supreme Court). No reexamanation of Congressional reforms relating to private securities litigation or the erstwhile barrier between investment and commercial banking appear. In fact there is implicit endorsement of the Congressional approach, rooted in the process and control philosophy of the Foreign Corrupt Practices Act, which the Act follows. This reading of the Act as modest is advanced in three stages of this Article. The first sets the background by summarizing the salient features of the dominant precipitating scandals and their times. The second stage dissects every material provision of the Act in context. The third and final stage suggests why the political rhetoric and substance diverged so widely, with illustrations of what a substantively bold Act might have looked like. Explaining the Act's rhetoric-reality yawn requires s

The most influential judicial voices on the parol evidence rule are Roger Traynor and Richard Posner. Traynor pieced together aspects of positions championed by the antipodal titans of contracts, Arthur Corbin and Samuel Williston. Posner cuts through tangled doctrinal webs to show how the unifying talisman of the doctrine is credibility. Everything in parol evidence rule doctrine, in this formulation, can be understood in terms of two categories of evidence: subjective and objective. While the Traynor composite blended aspects of the titans of contracts into an incoherent stew, the Posner composite unites the central theme of the titans' positions, holding some promise of at last bringing clarity to a seemingly intractable body of contract law. Costs associated with various formulations of the parol evidence rule and tradeoffs they entail include costs of perfect drafting compared to costs of judicial error from imperfect drafting. While such a comparative cost approach to thinking about the parol evidence rule may be sound in theory, it is impractical and paradoxical in operation. It requires a judge to evaluate simultaneously costs of perfect drafting and the risk that she or he will commit an error in applying the parol evidence rule. A credibility-centered parol evidence rule can enhance judicial understanding of both sides of this calculus while sidestepping the paradox.

This Article seeks to analyze and understand Paramount Communications, Inc. v. QVC Network, Inc. and Cede & Co. v. Technicolor, Inc. as part of a movement in Delaware fiduciary law toward a single, more unified standard, away from doctrinal fragmentation. In addition, the Article considers Delaware law leading up to QVC and Technicolor, tracing both the growing fragmentation of Delaware law in the 1980s and the growing judicial concern about fragmentation. This Article will argue that the concern over fragmentation and the desire for a unified standard were not the result of external pressures or policy concerns, but of internal judicial concerns about potential inequity, manipulability and lack of coherence in Delaware law. Finally, this Article will look at the practical significance of these new cases and the seeming trend toward a more unified conception of fiduciary law.