A tale of two trajectories

Fordham Law Review

Volumn 75, Issue 3, 2006, Pages 1629-1660

  Williams, Cynthia A ^a  

^a ILLINOIS COLLEGE   (United States)

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EID: 33846649036     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (109)

1. For a discussion of these limits, see Cynthia A. Williams, Corporate Compliance with the Law in the Era of Efficiency, 76 N.C. L. Rev. 1265, 1343 n.296 (1998).
2. See Landgraf v. USI Film Prods., 511 U.S. 244, 296-97 (1994) (Blackmun J., dissenting) ("The well-established presumption against retroactive legislation, which serves to protect settled expectations,... need not be applied to remedial legislation, such as §102, that does not proscribe any conduct that was previously legal.".
3. Luddington v. Ind. Bell Tel. Co., 966 F.2d 225 (7th Cir. 1992).
4. Id. at 229.
5. Id.
6. See Jaekel v. Equifax Mktg. Decision Sys., Inc., 797 F. Supp. 486, 493 n.14 (E.D. Va. 1992).
7. See Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972).
8. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Polit. Econ. 169 (1968).
9. I have been an "accidental empiricist" on this topic ever since 1995, asking many a lawyer how they counsel corporate clients about law compliance. I cannot (and do not) claim anything conclusive about these conversations, other than as just stated.
10. See Williams, supra note 1, at 1347-52.
11. See id. at 1310-14.
12. See Donald C. Langevoort, Someplace Between Philosophy and Economics: Legitimacy and Good Corporate Lawyering, 75 Fordham L. Rev. 1615, 1620 (2006) (quoting Principles of Corporate Governance § 2.01 cmt. G (1994)).
13. Frank H. Easterbrook & Daniel R. Fischel, Antitrust Suits by Targets of Tender Offers, 80 Mich. L. Rev. 1155, 1177 n.57 (1982). That the members of the American Law Institute (ALI) were aware of Easterbrook and Fischel's argument is explicit in Mel Eisenberg's commentary as the Reporter for the First Draft of the Principles section 2.01 concerning the obligations to comply with the law. Thus, he stated, It is sometimes maintained that whether a corporation should adhere to a given legal rule may properly depend on a kind of cost-benefit analysis.... This argument is premised on a false view of the citizen's duty in a democratic state. With few exceptions, dollar liability is not a "price" that can ethically be paid for the privilege of engaging in legally wrongful conduct. Principles of Corporate Governance § 2.01 cmt. f (Tentative Draft No. 1, 1982), quoted in Williams, supra note 1, at 1271-72.
14. H.L.A. Hart draws a distinction between being "obliged" to do an act and having an "obligation" to do so, with the latter conveying the sense of an internal perspective on law and the former of acting from compulsion while not subject to a claim of right, as in being obliged to hand over money to a gunman. See H.L.A. Hart, The Concept of Law 82 (2d ed. 1994). It is intriguing that the drafters of the Principles used the word "obliged" instead of "has an obligation to," but this may have been simply a stylistic preference.
15. See, e.g., Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in Jurisprudence and Ethics of Lawyering, 104 Yale L.J. 1545, 1576-80 (1995).
16. See Williams, supra note 1. I do acknowledge that there is a range of blameworthiness in a deliberate choice not to follow the law, and the level of blameworthiness will be dependent on a number of factors that will often make violation of malum in se law more blameworthy than violation of malum prohibitum law, such as whether there was harm caused by the violation, the extent of the harm that is caused, and the type of harm (economic or an injury to health, safety, or the environment). But I would also say that a deliberate choice not to follow the law is itself inherently blameworthy whether one can identify harm to others or the environment or not, because that choice is a harm to the concept of law itself. See Hart, supra note 14, at 6 ("The most prominent general feature of law at all times and places is that its existence means that certain kinds of human conduct are no longer optional, but in some sense obligatory.").
17. See generally Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 Cal. L. Rev. 1053 (2000) (providing a cogent overview of cognitive psychology and its implications for standard assumptions about the meaning of rationality).
18. See Dirk Matten & Andrew Crane, Corporate Citizenship: Toward an Extended Theoretical Conceptualization, 30 Acad. Mgmt. Rev. 166 (2005). In that article, Professors Matten and Crane review the definitions of corporate social responsibility (CSR) that have been put forth in the management literature, and then note dryly that "[t]o some extent, however, these concepts have attained a wider and more enthusiastic acceptance in the academic literature than in corporate thinking and practice. [Corporate citizenship], meanwhile, has been introduced into the CSR discourse in the last few years, mainly at the instigation of corporate actors." Id. at 167 (citations omitted). I think there are important differences in the connotations of "corporate social responsibility" versus "corporate citizenship," with the latter having more connotations of privileges, including of political involvement, rather than duties, as connoted by the term "corporate social responsibility." Thus, I continue to prefer the term corporate social responsibility.
19. See John M. Conley & Cynthia A. Williams, Engage, Embed, and Embellish: Theory Versus Practice in the Corporate Social Responsibility Movement, 31 J. Corp. L. 1 (2005) (reporting on an ongoing business ethnography project investigating the corporate social responsibility trend). This project has involved interviews of people in companies, here and in the United Kingdom, as well as interviews with institutional investors and nongovernmental organizations (NGOs), and attending CSR conferences, again both here and in the United Kingdom, to get a sense of the internal meaning of CSR to the participants in the field. It was in the course of those interviews that we heard of the "fear of liability" concern having been expressed by U.S. lawyers as a reason for companies not to embrace either CSR standards or disclosure.
20. See, e.g., Roger C. Cramton, Enron and the Corporate Lawyer: A Primer on Legal and Ethical Issues, 58 Bus. Law. 143 (2002) (discussing the role of lawyers in Enron and other "massive corporate frauds"); Milton C. Regan, Jr., Teaching Enron, 74 Fordham L. Rev. 1139 (2005) (discussing the role of lawyers in advising Enron in various of its off-balance sheet structured-finance transactions).
21. See generally David Campbell & Sol Picciotto, Exploring the Interaction Between Law and Economics: The Limits of Formalism, 18 J. Legal Stud. 249 (1998) (setting out an extremely critical perspective on law and economics as developed by Posner and Becker in the United States, and contrasting it with British institutionalist theories that evaluate the interactions of firms, markets and the state as social phenomena that cannot be properly understood outside of their social context);
22. cf. Brian R. Cheffins, The Trajectory of (Corporate Law) Scholarship 34 (Nov. 2003), available at http://www.ssrn.corn/abstract= 429624 (noting that the law and economics approach to corporate law scholarship is disfavored and criticized in British corporate law as compared to a more explicitly stakeholder oriented view);
23. Nuno Garoupa & Thomas S. Ulen, The Market for Legal Innovation: Law and Economics in Europe and the United States (Ill. Program in Law and Econ. Working Paper Series, Aug. 2006) (evaluating various theories for why law and economics has not been taken up in Europe to anywhere near the extent it has been taken up in the United States).
24. Of course it would be useful to define these terms more specifically. I hope I am using the terms in the sense that the conference organizers have set them out-that an external perspective looks primarily to the sanctions that would be applied were one not to comply with law, while an internal perspective, as defined by H.L.A. Hart, looks to the internal sense of obligation to law experienced by a well-meaning citizen of a well-functioning legal system unrelated to potential sanctions. See Benjamin C. Zipursky, Legal Obligation and the Internal Aspect of Rules, 75 Fordham L. Review 1229 (2006).
25. See Conley & Williams, supra note 19;
26. Cynthia A. Williams & John M. Conley, An Emerging Third Way? The Erosion of the Anglo-American Shareholder Value Construct, 38 Cornell Int'l L.J. 493 (2005) [hereinafter Williams & Conley, Third Way];
27. Cynthia A. Williams, Civil Society Initiatives and "Soft Law" in the Oil and Gas Industry, 36 N.Y.U. J. Int'l. L. & Pol. 457 (2004) [hereinafter Williams, Civil Society].
28. Council Directive 2003/51, art. 1, 14(a), 2003 O.J. (L 178) 18.
29. Id. After an extensive consultation process that lasted approximately seven years, the United Kingdom passed a law in early 2005 for its companies to produce an annual Operating and Financial Review (OFR). The OFR would have required substantially increased disclosure about companies' strategic choices and challenges, and about their risks and opportunities from social and environmental matters, including labor and community relationships. See Williams & Conley, Third Way, supra note 23, for an extensive discussion about this development and the consultation process. On November 28, 2005, Chancellor Gordon Brown announced that the government was withdrawing the regulations since U.K. companies are covered by the European Union's Modernization Directive, and there was no need to "gold plate" the E.U. requirements (i.e., go beyond what the European Union was requiring). Chancellor Brown's actions have resulted in a huge outcry among investors, accountants, and environmentalists, and so may well not be the last chapter of the OFR saga.
30. Statutory citations and further information concerning governments' nonfinancial disclosure requirements can be found in Williams & Conley, Third Way, supra note 23.
31. See id. at 505, nn. 53-57.
32. See id. at 504, nn. 43-46.
33. European Multistakeholder Forum on CSR, Final Results & Recommendations 2 (June 29, 2004), available at http://europa.eu.int/ comm/enterprise/csr/documents/29062004/EMSF_final_report.pdf.
34. Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee: Implementing the Partnership for Growth and Jobs: Making Europe a Pole of Excellence on Corporate Social Responsibility, COM (2006) 136 final (Mar. 22, 2006), available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2006:0136:FIN: EN:HTML.
35. Organisation for Economic Co-operation and Development, Guidelines for Multinational Enterprises, http://www.oecd.org/topic/0,2686, en_2649_34889_1_1_1_1_37439,00.html (last visited Oct. 29, 2006).
36. Organisation for Economic Co-operation and Development, OECD, Partner Governments Commit to Enhance Value of Multinational Guidelines (Sept. 9, 2005), http://www.oecd.org/document/45/0,2340,en_2649_201185_35389869_1_1_1_1,00.html.
37. See generally The Global Compact, http://www.globalcompact.org (last visited Oct. 29, 2006).
38. See Williams, Civil Society, supra note 23, at 477-84 (describing the Principles).
39. See id. at 484-92 (describing Extractive Industry Transparency Initiative).
40. See generally Social Accountability International, http://www.sa-intl.org/ (last visited Oct. 29, 2006).
41. See generally Global Reporting Initiative, http://www. globalreporting.org (last visited Oct. 29, 2006).
42. See generally Responsible Care: The Chemical Industry's Performance, http://www.chemicalguide.com/ (last visited Oct. 29, 2006).s
43. See id.
44. See The Equator Principles: A Benchmark for the Financial Industry to Manage Social and Environmental Issues in Project Financing, http://www.equator-principles.com/ (last visited Oct. 29, 2006).
45. Press Release, Ass'n of British Insurers, Socially Responsible Investment (Sri)-ABI Leads the Way with New Guidelines (Oct. 23, 2001), available at http://www.abi.org.uk/Newsreleases/viewNewsRelease.asp?nrid=3676.
46. See Matten & Crane, supra note 18, at 167.
47. See Conley & Williams, supra note 19. I do maintain some optimism that producing and publicizing Global Reporting Initiative (GRI) reports might eventually have some positive impact upon companies' social and environmental actions.
48. See Sharon M. Livesey, The Discourse of the Middle Ground: Citizen Shell Commits to Sustainable Development, 15 Mgmt. Comm. Q. 313 (2002) (evaluating the effects of companies' communications strategies, and asserting that as companies make palliative statements to one constituency, for instance environmentalists, this can create pressures by other constituencies (such as employees) on the company to actuate the values inherent in the statements).
49. See Conley & Williams, supra note 19, at 18-21 (discussing the impact on NGOs of establishing partnership projects with businesses).
50. See Jeffrey Ball, After Long Detente, GM, Green Group Are at Odds Again, Wall St. J., July 30, 2002, at A1.
51. See Danny Hakim, Ford Stresses Business, but Disappoints Environmentalists, N.Y. Times, Aug. 20,2002, at C4.
52. See Livesey, supra note 43, at 330.
53. See Conley & Williams, supra note 19, at 35-36.
54. See generally Marc Orlitzky, Frank L. Schmidt & Sara L. Rynes, Corporate Social and Financial Performance: A Meta-Analysis, 24 Org. Stud. 403 (2003).
55. See Williams, Civil Society, supra note 23, at 498-501 (discussing the U.N. process to define the human rights obligations of multinational companies and other business entities).
56. I recognize that this statement contains an implicit empirical premise with which many people would disagree: that failing to regulate companies vigorously is not consistent with the public good. Of course many academics and company executives think that it is best to let markets work to "regulate" companies, and so acting to avoid global regulation is in the public good. Leaving this thorny debate aside, I am comfortable with suggesting that this is a public choice conception of the corporate citizen, since it shows the actions of organized interest groups (business) achieving political goals (staving off regulation) at the expense of the policy preferences that may well be preferred by a diffuse, disorganized majority of global citizens.
57. This is not a new definition of corporate social responsibility, by any means, much like these questions about the nature of the corporation and its relationship to society are not new. See, e.g., Christopher D. Stone, Corporate Social Responsibility: What It Might Mean, If It Were Really to Matter, 71 Iowa L. Rev. 557 (1986) (asserting that corporate social responsibility must at least mean that companies create organizational structures that permit them to get information on the effects of their actions and "reflect" upon it). For more recent discussions of the potential importance of laws that require such reflection, see David W. Case, The Law and Economics of Environmental Information as Regulation, 31 Envtl. L. Rep. 10,773 (2001);
58. David Hess, Social Reporting and New Governance Regulation: The Prospects of Achieving Corporate Accountability Through Transparency, Bus. Ethics Q. (forthcoming 2006), available at http://papers.ssm.com/sol3/ papers.cfm?abstract_id=818544;
59. Eric W. Orts, Reflexive Environmental Law, 89 Nw. U. L. Rev. 1227 (1995).
60. See Conley & Williams, supra note 19.
61. Legal academics have struggled to produce useful definitions of CSR, and in that effort may be well advised to look to the management literature. In that literature, one widely used definition is that of Professor Archie B. Carroll. Matten and Crane summarize Carroll's definition of CSR as comprised of four types of responsibilities: "(1) the economic responsibility to be profitable; (2) the legal responsibility to abide by the laws of society; (3) the ethical responsibility to do what is right, just, and fair; and (4) the philanthropic responsibility to contribute to various kinds of social, educational, recreational, or cultural purposes." Matten & Crane, supra note 18, at 167 (referring to Archie B. Carroll, A Three-Dimensional Conceptual Model of Corporate Performance, 4 Acad. of Mgmt. Rev. 497 (1979)).
62. There are obviously limits to this: ExxonMobil is consistently one of the world's most profitable companies notwithstanding having no demonstrated commitments to "social responsibility," refusing to participate in industry initiatives with respect to revenue transparency or security arrangements, and funding various think tanks to dispute the evidence of climate change. Since it sells a product that is necessary to life as we now know it, with high barriers to entry, it is (apparently) unconcerned with the views of many institutional investors, NGOs, or consumers, and has not suffered in the market.
63. See Langevoort, supra note 12, at 1625 (footnote omitted).
64. See Robert A. Kagan, Neil Gunningham, & Dorothy Thornton, Explaining Corporate Environmental Performance: How Does Regulation Matter?, 37 Law & Soc'y Rev. 51 (2003).
65. The sociologist Robert Kagan has suggested this relative emphasis based on an empirical study he conducted with colleagues about firms' varying approaches to environmental law compliance. See id. at 78-82.
66. See Jonathan Birchall & Fiona Harvey, Wal-Mart Vows to Sell Only Sustainable Fish, Fin. Times, Jan. 29, 2006, at 7. According to the same article, Wal-Mart will also establish "sustainability networks" to bring together its suppliers, buyers, and concerned NGOs to discuss standards in agriculture, seafood, gold, and jewelry. Notably missing is apparel, where Wal-Mart's record in its factories in China has been recently criticized in the movie Wal-Mart and in the Wal-Mart Watch citizen action campaign. For more on this, see Wal-Mart Watch, http://walmartwatch.com/ (last visited Nov. 22, 2006).
67. For a general discussion of these influences, including the role of mergers and acquisitions in relaxing the guard of numerous gatekeepers, see David Skeel, Icarus in the Boardroom (2005);
68. see also John C. Coffee, Jr., What Caused Enron? A Capsule Social and Economic History of the 1990s, 89 Cornell L. Rev. 269 (2004).
69. The quoted language is from Justice Benjamin Cardozo in one of his most famous opinions in business law, written when he was Chief Justice of the New York Court of Appeals. See Meinhard v. Salmon, 164 N.E. 545, 545-46 (N.Y. 1928).
70. See, e.g., Paramount Comm., Inc. v. Time, Inc., 571 A.2d 1140 (Del. 1990) (holding that the doctrine of independent legal significance applied to permit a merger, which would have required a shareholder vote to be recast as an acquisition, but which did not, where it was unlikely the shareholders would have voted for the merger).
71. See, e.g., Benchmark Capital Partners IV, L.P. v. Vague, No. CV. A. 19719, 2002 WL 1732423 (Del. Ch. July 15, 2002) (applying the doctrine of independent legal significance to permit a merger for the primary purpose of stripping one class of preferred shareholders of its preferences).
72. See In re Pure Resources, Inc., 808 A.2d 421, 433-35 (Del. Ch. 2002) (discussing the different standards that are used depending only on whether a merger or a self-tender is used).
73. D. Gordon Smith, Independent Legal Significance, Good Faith, and the Interpretation of Venture Capital Contracts, 40 Willamette L. Rev. 825, 828 (2004). While recognizing the value of formalism in producing clarity and certainty for transactional planners, Professor Smith also uses comparative institutional analysis to suggest that the courts should engage in a more searching inquiry of the good faith of corporate actors when the doctrine of independent legal significance is used to permit egregious preference stripping.
74. Leo E. Strine, Jr., The Delaware Way: How We Do Corporate Law and Some of the New Challenges We (and Europe) Face, 30 Del. J. Corp. L. 673, 675 (2005).
75. Blasius Industries, Inc. v. Atlas Corp., 564 A.2d 651 (Del. Ch. 1988), is one case where a board of directors followed all the proper formalities under the company's certificate of incorporation and by-laws to expand the board and appoint new directors, but the Delaware Supreme Court found the action inequitable because it interfered with the potential efficacy of a shareholder vote in the midst of a contest for control of the company. While Blasius is still referred to on occasion, the Delaware Supreme Court has acknowledged that the burden it imposes "is quite onerous, and is therefore applied rarely." Williams v. Geier, 671 A.2d 1368, 1376 (Del. 1996). Rather, defensive measures are typically evaluated using the more management-friendly standard of Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946 (Del. 1985).
76. See Smith, supra note 65, at 833-34 (discussing Hariton v. Arco Electronics, Inc., 188 A.2d 123 (Del. 1963)).
77. Regulation S-K is the omnibus regulation that defines specifically what needs to be disclosed in complying with the various securities laws, but many of the specific items defined therein only need to be disclosed "to the extent material." See Cynthia A. Williams, The Securities and Exchange Commission and Corporate Social Transparency, 112 Harv. L. Rev. 1197, 1208-09 (1999) (discussing the relationship of the "materiality" concept to specific disclosure requirements of Reg. S-K).
78. Basic, Inc. v. Levinson, 485 U.S. 224, 231-32 (1988) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438 (1976) (defining materiality for purposes of Section 14a claims)).
79. Id. at 232.
80. Id. at 238 (citing SEC v. Tex. Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968) (en banc)).
81. See In re Caterpillar, Inc., Exchange Act Release No. 30532, 51 SEC Docket 197 (Mar. 31, 1992) (describing an SEC action against Caterpillar where the potential impact of South American currency fluctuations on future profits had not been adequately described).
82. See, e.g., Douglas G. Cogan, Coal, for Environmentally Responsive Econs. (CERES), Corporate Governance and Climate Change: Making the Connection (Mar. 2006), available at http://www.ceres.org/pub/docs/ Ceres_corp_gov_and_climate_change_0306.pdf (discussing the potential impacts of climate change on a wide range of industries).
83. Basic involved misstatements of facts, as managers of the Basic Combustion Company denied allegations that merger talks were occurring at a time when they were in fact occurring-and denied such talks even in answer to a specific question by the New York Stock Exchange, which is a particularly obtuse disclosure strategy. See Basic, 485 U.S. at n.4.
84. Id. at 236.
85. Id. at 238 (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438 (1976)).
86. See SEC Staff Accounting Bulletin No. 99, 64 Fed. Reg. 45150 (1999), available at http://www.sec.gov/interps/account/sab99.htm.
87. Zipursky, supra note 22, at 1229.
88. See Hart, supra note 14, at 124-41.
89. See Arthur Levitt, Chairman, SEC, The "Numbers Game," Speech Before the New York University Center for Law and Business (Sept. 28, 1998), available at http://www.sec.gov/news/speech/speecharchive/1998/ spch220.txt.
90. See United States v. Wiles, 102 F.3d 1043, 1050 (10th Cir. 1996) (describing efforts to hide a $15,000,000 inventory overstatement with "an extensive cover-up which included recording the shipment of bricks as in-transit inventory").
91. I recognize that this is an iconoclastic view, but it is supported by a number of articles in the finance literature that suggest that analysts on Wall Street are better able to interpret smooth earnings than volatile earnings, and therefore do a better job of valuing the stocks of companies in which earnings are smoothed. See Anil Arya, Jonathan C. Glover & Shyam Sunder, Are Unmanaged Earnings Always Better for Shareholders?, Acct. Horizons, supp. 2003, at 111-12 (a managed earnings stream ("income smoothing") can convey more information than an unmanaged earnings stream since it permits managers to convey their best assessment of private information);
92. Paul K, Chaney & Craig M. Lewis, Income Smoothing and Underperformance in Initial Public Offerings, 4 J. Corp. Fin. 1, 1 (1998) (finding a positive association between a proxy for income smoothing and firm performance in a sample of 489 firms that made initial public offerings between 1975 and 1984, and stating that "[t]his result is consistent with a hypothesis that the market makes better assessments of the information content of earnings for firms with smoother earnings").
93. I am grateful to my colleague at the University of Illinois, Emeritus Professor John E. Cribbet, for bringing this saying about the law to my attention (and to the attention of Illinois law students for the over fifty years that he taught students not only about the law, but about the highest standards of professionalism and ethics).
94. Zipursky, supra note 22, at 1247.
95. Hart, supra note 14, at 40.
96. Deal structures are hugely affected by tax considerations, so the well-meaning, internally guided Hartian lawyer may really have much less freedom to act in this area to protect shareholders or actuate a sense of fairness, as compared to the freedom to structure the client's disclosure under securities law.
97. See Hart, supra note 14, at 124-36.
98. See Langevoort, supra note 12, at 1616-18.
99. I am using the term "primitive" law and economics in recognition that the field has developed well beyond its earliest articulations, such as those of Judge Richard Posner, and that more recent work incorporates a fuller picture of human rationality and interests. See Korobkin & Ulen, supra note 17. Yet, as with much of the more sophisticated work law professors do, these elaborations are often not communicated as clearly to students as are the simpler foundational ideas, such as the idea that the promotion of "economic efficiency" is the major goal of law, swamping fairness or redistribution as competing goals.
100. Campbell & Picciotto, supra note 21, at 253. Campbell and Picciotto's article is a critique of American-style law and economics, including a thoughtful analysis of the ways in which that intellectual juggernaut has misread Coase, and is a good starting point for references to the European institutional economics tradition.
101. The corporate variation of this theory is that social welfare is enhanced by individual companies acting solely to maximize shareholder wealth. See Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 Geo. L.J. 439 (2001), for what has become the iconic, short expression of this view.
102. See Lynn A. Stout, On the Proper Motives of Corporate Directors (Or, Why You Don't Want to Invite Homo Economicus to Join Your Board), 28 Del. J. Corp. L. 1, 9 (2003) (asserting that "[e]conomic analysis has little use for such concepts as honor, trustworthiness, or duty").
103. See supra note 40; see also Cynthia A. Williams, Icarus on Steroids, 94 Geo. L.J. 1197, 1202-07 (2006) (reviewing David Steel, Icarus in the Boardroom (2005)) (providing an overview of the academic writing on Enron and related problems, and a discussion of the kinds of conflicts of interest that produced the Enron era).
104. Enron: The Smartest Guys in the Room (Magnolia Pictures 2005).
105. See Stout, supra note 91, at 13-16.
106. For an excellent critique of the "efficient" breach theory, see Joseph M. Perillo, Misreading Oliver Wendell Holmes on Efficient Breach and Tortious Interference, 68 Fordham L. Rev. 1085 (2000).
107. Patton v. Mid-Continent Sys., Inc., 841 F.2d 742, 750 (7th Cir. 1988).
108. See Perillo, supra note 94, at 1041-93, for further elaboration of this point.
109. One of the joys of writing a symposium essay is that one can take it as an opportunity to romp through tangled legal thickets that one would normally feel an obligation to tease apart with painstaking care. I have clearly taken this opportunity in this essay, while hoping that my former writing in this area will lend some measure of gravitas to my perambulations here.