What role do corporate boards play in compliance? Compliance programs are internal enforcement programs, whereby firms train, monitor and discipline employees with respect to applicable laws and regulations. Corporate enforcement and compliance failures could not be more high-profile, and have placed boards in the position of responding to systemic problems. Both case law on boards’ fiduciary duties and guidance from prosecutors suggest that the board should have a continuing role in overseeing compliance activity. Yet very little is actually known about the role of boards in compliance. This paper offers the first empirical account of public companies’ engagement with compliance at the board level, drawing on director-level data from BoardEx and data on federal organizational prosecutions from the Duke University and University of Virginia Corporate Prosecution Registry. We find that, despite a standard account that compliance has boomed, few boards actually adopt compliance committees. Less than five per cent of U.S. public companies have done so, although the proportion has grown steadily over time. We use our data to explore why boards establish compliance committees. Our results suggest that there is room for more constructive engagement with compliance by many boards. We conclude by recommending ways in which board compliance might be facilitated or encouraged: reconsidering norms about board size and independence, enhancing accountability of directors to regulators, and tightening state law fiduciary duties regarding oversight.
关于公司宗旨是利润最大化还是要兼顾利益相关者的问题,在学界和业界争论已久.本文对反对利益相关者理论的文献进行了批驳,并鲜明地指出,为了公共利益而牺牲公司利润的公司自由裁量权是明确存在且不可避免的.企业领导人为了公共利益而牺牲企业利润的有限自由裁量权实际上是可取的,也是有社会效果的.
披露兼具信息性和保护性双重目的,二者相对优先级的不确定性使美国信披制度饱受批评.制度起源和立法史表明,法定披露方案更适于提供投资信息,而彼时国会更关注的投资者保护方面效果欠佳.然而,美国证券交易委员会近来的行动表明了其从强调披露的保护性目的到信息性目的的态度转变,但其并未放弃对保护性目的的持续关注.提高披露过程的信息价值的关键,不在于放弃其保护价值,而在于解决保护性披露政策与信息性披露政策之间的冲突.
自20世纪60年代以来,围绕公司强制性披露制度必要性这一问题掀起了新一轮批判热潮。本文强调了历史性研究对于证券监管工作的重要性,指出相关的批判性观点大多从理论角度展开,未充分考虑该制度的历史证据。本文是从历史角度考察SEC公司强制性披露制度的必要性,回顾了美国构建该制度的整个立法过程及相关材料,分析了导致该制度形成并发展的现实问题,并就该制度实施前后的证券市场信息披露状况进行了对比研究,不仅验证了该制度支持者的相关观点,回应了对制度必要性的疑问,而且为相关的制度改革提供了思路。
IT HE Securities Act of 1933 and the Securities Exchange Act of 1934 have escaped the fate of many other early New Deal programs. Some of their companions, such as the National Industrial Recovery Act, were declared unconstitutional; others such as the Robinson-Patman Act, have fallen into desuetude; still others, such as Social Security, have been so changed that they would be unrecognizable to their creators. Many of the New Deal programs of regulation lost their political support and were replaced by deregulation; communications and transportation are prime examples. The securities laws, however, have retained not only their support but also their structure. They had and still have two basic components: a prohibition against fraud, and requirements of when securities are issued and periodically thereafter. The notorious complexities of securities practice arise from defining the details of and ascertaining which transactions are covered by the requirements. There is very little substantive regulation of investments. To be sure, the Securities and Exchange Commission (SEC) occasionally uses the rubric of to affect substance, as when it demands that insiders not trade without making disclosures that would make trading pointless, when it requires that a going private deal disclose that the price is fair, and when it insists that the price of accelerated registration of a prospectus is disclosure that directors will not be indemnified for certain wrongs.
