The Role of Financial Journalists in Corporate Governance
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Cleveland State University EngagedScholarship@CSU Law Faculty Articles and Essays Faculty Scholarship 2007 The Role of Financial Journalists in Corporate Governance Michael J. Borden Cleveland-Marshall College of Law, [email protected] Follow this and additional works at: https://engagedscholarship.csuohio.edu/fac_articles Part of the Business Organizations Law Commons, and the Securities Law Commons How does access to this work benefit ou?y Let us know! Original Citation Michael Borden, The Role of Financial Journalists in Corporate Governance, 12 Fordham Journal of Corporate & Financial Law 311 (2007) This Article is brought to you for free and open access by the Faculty Scholarship at EngagedScholarship@CSU. It has been accepted for inclusion in Law Faculty Articles and Essays by an authorized administrator of EngagedScholarship@CSU. For more information, please contact [email protected]. Fordham Journal of Corporate & Financial Law Volume 12, Issue 2 2007 Article 3 The Role of Financial Journalists in Corporate Governance Michael J. Borden∗ ∗ Copyright c 2007 by the authors. Fordham Journal of Corporate & Financial Law is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/jcfl THE ROLE OF FINANCIAL JOURNALISTS IN CORPORATE GOVERNANCE Michael J. Borden∗ ∗ Assistant Professor of Law, Cleveland-Marshall College of Law, Cleveland State University. I wish to thank David Barnhizer, Veronica Dougherty, Patti Falk, David Forte, Chris Sagers, and Eric Tucker for their input during the early stages of this project. This Article benefited from the able research assistance of Meghann Proie and Carl Schatz and from the financial support of the Cleveland-Marshall Fund. I am profoundly indebted to Joel Topcik and Miranda Borden. 311 312 FORDHAM JOURNAL OF Vol. XII CORPORATE & FINANCIAL LAW TABLE OF CONTENTS INTRODUCTION...................................................................................... 313 I. FILLING A GAP IN CORPORATE LAW: WHERE DO JOURNALISTS FIT INTO OUR SCHEME OF CORPORATE GOVERNANCE? .............. 316 A. How Corporate Law Works.................................................. 316 B. Reputational Constraints....................................................... 320 C. Gatekeepers As a Constraint on Management. ..................... 321 II. WHAT CAN WE EXPECT OF JOURNALISTS AND WHY? ................ 323 A. Journalists Are Best Suited to Uncovering Affirmative Wrongdoing. ....................................................................... 323 B. Journalism Or Shaming?....................................................... 324 C. Careerist Self-Interest as an Incentive for Energetic Reporting ............................................................................ 326 D. Contrast with Political Journalists ........................................ 327 E. How Do Financial Journalists Get Their Information?......... 329 III. ROLES JOURNALISTS PLAY. ........................................................ 332 A. Investigative Journalists Can Uncover a Deep Fraud and Initiate a Market-Based Response: The Case of Enron. ..... 335 B. Financial Journalists as Catalysts of Judicial and Regulatory Process: The Recent Annuities Litigation........ 339 C. Journalists Can Influence Standards of Review in Compliance Litigation ........................................................ 343 D. Financial Journalists Can Impact the Legislative Process. ... 350 IV. JOURNALISTS AND ANALYSTS..................................................... 357 A. Weaknesses of Journalists .................................................... 357 B. The Role and Conflicts of Securities Analysts. .................... 361 C. The Intersection of Journalists and Analysts. ....................... 364 D. Regulation FD: Preliminary Thoughts for Future Research. 366 CONCLUSION......................................................................................... 369 2007 THE ROLE OF FINANCIAL JOURNALISTS 313 INTRODUCTION Recent corporate scandals have caused many corporate law scholars to re-evaluate a great deal of corporate law orthodoxy. In a recent essay, Michael Klausner highlighted the limits of corporate law in promoting good corporate governance and called for scholars to devote greater attention to extralegal enforcement mechanisms.1 A great many scholars have already taken up that effort. Some have pursued the insights offered by behavioral economics to aid their rethinking of the last quarter century’s corporate law jurisprudence and commentary.2 Many have focused their attention on the functioning of the securities markets and the various players who comprise it.3 Jill Fisch, Hillary Sale, and John Coffee, among others, have emphasized the role of gatekeepers such as securities analysts, securities lawyers, and auditors.4 A great deal of this work has focused on the conflicts of interest afflicting various actors and ways to deal with these conflicts.5 An article by Bernard Black emphasizes the importance of accurate, honest 1. Michael Klausner, The Limits of Corporate Law in Promoting Good Corporate Governance, in RESTORING TRUST IN AMERICAN BUSINESS 91, 97-8 (Jay W. Lorsch, Leslie Berlowitz & Andy Zelleke eds., 2005). Klausner explains the shortcomings of corporate law and calls for attention to be paid to extra-legal influences on governance. He notes that professional norms are “fostered by the financial press every time they write a story that exposes bad board behavior . .” Id. 2. See generally Stephen J. Choi & A.C. Pritchard, Behavioral Economics and the SEC, 56 STAN. L. REV. 1, 14 (2003); Ronald J. Gilson & Reinier Kraakman, The Mechanisms of Market Efficiency Twenty Years Later: The Hindsight Bias, 28 J. CORP. L. 715 (2003); Donald C. Langevoort, Taming the Animal Spirits of the Stock Markets: A Behavioral Approach to Securities Regulation, 97 NW. U. L. REV. 135 (2002); Robert Prentice, Whither Securities Regulation? Some Behavioral Observations Regarding Proposals for its Future, 51 Duke L.J. 1397 (2002); A. Michelle Dickerson, A Behavioral Approach to Analyzing Corporate Failures, 38 WAKE FOREST L. REV. 1 (2003). 3. See generally Robert J. Thompson & Hillary A. Sale, Securities Regulation as Corporate Governance: Reflections upon Federalism, 56 VAND. L. REV. 859 (2003). 4. See Jill. E. Fisch & Hillary A. Sale, The Securities Analyst As Agent: Rethinking the Regulation of Analysts, 88 IOWA L. REV. 1035, 1040-56 (2003); see generally John C. Coffee, Jr., Gatekeeper Failure and Reform: The Challenge of Fashioning Relevant Reforms, 84 B.U. L. REV. 301 (hereinafter Coffee, Gatekeeper Failure); John C. Coffee, Jr., Understanding Enron: “It’s About the Gatekeepers, Stupid,” 57 Bus. L.J. 1403 (2002) (hereinafter Coffee, Understanding Enron). 5. See Coffee, Gatekeeper Failure, supra note 4, at 301; Coffee, Understanding Enron, supra note 4, at 1403; Fisch & Sale, supra note 4, at 1035. 314 FORDHAM JOURNAL OF Vol. XII CORPORATE & FINANCIAL LAW disclosure and how to ensure its quality.6 Indeed, disclosure goes to the very heart of any market-based extralegal enforcement apparatus in corporate governance. This Article pursues the important theme of disclosure, but focuses on a feature that has remained almost entirely overlooked by corporate and securities law scholars: the role of financial journalists in corporate governance.7 This omission is perhaps due to the fact that journalists do not fit easily into a legal discussion because they are largely unregulated. They are, in a sense, not legal actors, and, therefore do not comfortably become the subject of a legal prescription. Nevertheless, journalists contribute in many ways to the legal system at large and the system of corporate governance in particular. This Article uses case studies to highlight the importance of financial journalists in our scheme of corporate law by identifying and illustrating several distinct ways that journalists contribute to our system of corporate governance. It is beyond the scope of this Article to fully explain the mechanisms whereby journalistic reporting affects attitudes and actions, whether on the part of the public at large, legislators, judges, prosecutors or corporate directors and officers.8 Nonetheless, the case studies suggest causal links between the reporting described and the consequences for corporate governance that follow. Rather than attempting to undertake a thoroughgoing empirical exploration of the 6. See Bernard S. Black, The Legal and Institutional Preconditions for Strong Securities Markets, 48 UCLA L. REV. 781 (2001). 7. Despite ubiquitous references to media reports throughout corporate law scholarship, no one has written a thorough account of the role of the media in corporate law. Scholars have, however, paid some attention to the media in other areas of law. See, e.g., Melissa B. Jacoby, Negotiating Bankruptcy Legislation Through the Media, 41 HOUS. L. REV. 1091 (2004) (discussing the media’s role in the legislative process that ultimately led to the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005); M. ETHAN KATSH, LAW IN A DIGITAL WORLD 9 (1995) “Scholars seem to view the powerful realms of law and media as distinct and independent, each having an impact on behavior and attitudes, but having little influence on each other.” (pointing out that books about communication and society rarely focus on law, while books about law focus on speech regulation and free expression, but little else); KATHLEEN HALL JAMIESON & PAUL WALDMAN, THE PRESS EFFECT: