Investigating Intersections of Corporate Governance & Compliance

Symposium Introduction

In April 2019, Notre Dame Law in London hosted a conference entitled “Investigating Intersections of Corporate Governance & Compliance” with scholars from the United States and United Kingdom participating.  The goal of the conference was to facilitate dialogue within and amongst legal scholarly disciplines regarding the ways in which governance and compliance intersect.  The effort was a resounding success, and The University of Chicago Law Review Online graciously agreed to publish the six papers presented at the conference.

The field of compliance is both old and new.  Old in that the origins of compliance programs can be traced back to statutory requirements that are several decades old.  New in that legal scholars have been treating compliance as its own distinct field for a much shorter amount of time.  Indeed, the past decade has seen a marked increase in compliance scholarship, as well as a new American Law Institute project that is charged with putting forth “Principles of the Law” in “Compliance, Risk Management, and Enforcement.” Furthermore, there have been explicit calls for rethinking compliance incentives, and effective structures for compliance programs are being debated actively by legal scholars.  This Symposium adds unique and valuable insights to these larger debates.

The contributions to this Symposium address (1) the challenge of disincentivizing white collar crime within firms, (2) the impact of regulation in governance and compliance norms within changing and emerging regulatory areas and industries, (3) the ways in which the compliance function looks similar to other types of governance structures, and (4) the importance of ethics to compliance efforts.  Each author’s individual expertise shines through in their respective contributions, allowing readers of this symposium to think across the intellectual silos that are so often found within legal scholarship.

In The Making of a Mismarker:  The Case of the Only Banker Jailed in the U.S. for his Role in the Financial Crash, Dr. Joe McGrath of University College Dublin examines one of the root causes of white collar crime, with a particular focus on how white collar criminals rationalize their conduct.  One of the biggest obstacles facing firms today is how to discourage employees from engaging in misconduct.  His contribution demonstrates that one of the challenges with stopping misconduct by rogue employees is that they do not see themselves as wrongdoers and, more importantly, they can sometimes convince others, even perhaps a judge, that they should not be held culpable for their misconduct.

In Foreign Corruption as Market Manipulation, Professor Gina-Gail S. Fletcher of Indiana University Maurer School of Law explores the ramifications of the Commodity Futures Trading Commission (“CFTC”) taking on a new enforcement role of Foreign Corrupt Practice Act (“FCPA”) violations.  In particular, she outlines the ways in which instances of market manipulation might invoke the FCPA and the ramifications to firms’ compliance programs.

In The Role of Corporate Governance in a Macroprudential Framework, Lecturer Katrien Morbee of Queen Mary University of London considers the difficulties presented by different types of systemically important (bank and nonbank) financial institutions.  In particular, she argues that regulators and academics should consider the interaction between systemic risk and the governance of non-bank financial institutions, paying careful attention not to simply take the governance structures of banks and apply them to non-bank institutions and assume they will fit the needs of non-bank corporate structures.

In Regulating Cryptocurrency Secondary Market Trading Platforms, Professor Kristin N. Johnson of Tulane University Law School outlines the challenges confronting developers and market participants as emerging technologies begin to evoke formal interest from regulators.  In particular, she proposes a regulatory exemption to ensure digital asset trading platforms are provided the safe harbor necessary for ensuring an organized and effectively governed marketplace that allows for continued access to liquidity.

In Is Business and Human Rights Suitable for the Compliance Function, Professor Michael K. Addo of Notre Dame Law School’s London Program assesses the connections between the field of business and the field of human rights and compliance.  In doing so, he explains their distinct evolutions, but notes the many ways in which the two disciplines complement and mirror each other.  Ultimately, he argues that scholars of business and human rights and compliance should think through ways the fields might be integrated or, at least, be utilized as mechanisms to reinforce the goals of each discipline.

Finally, in More Meaningful Ethics, Veronica Root Martinez of Notre Dame Law School questions the wisdom of creating compliance programs that prioritize compliance norms without an equal focus on ethics.  In particular, the essay argues that firms should implement specific and explicit ethical infrastructures within their compliance programs.  As one way to effectuate that goal, the Essay suggests that firms commit to adopting policies and procedures that (i) protect the dignity of, (ii) promote the flourishing of, and (iii) advance the interests of the various stakeholders of firms as a baseline to be used for establishing the ethics components of their ethics and compliance programs.

The essays within this Symposium will allow readers to think through the causes of white collar crime, the appropriate regulatory responses to potential misconduct, the ways in which compliance relates to other disciplines within law, and strategies for improving ethics and compliance programs going forward.  In short, it provides a snapshot of various moments within larger compliance efforts.  We hope you learn something new and something valuable as you read our contributions.