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Scholarship@PITT LAW Gatekeeping Pittsburgh University School of Law Scholarship@PITT LAW Articles Faculty Publications 2004 Gatekeeping Peter B. Oh University of PIttsburgh School of Law, [email protected] Follow this and additional works at: https://scholarship.law.pitt.edu/fac_articles Part of the Banking and Finance Law Commons, Business and Corporate Communications Commons, Business Intelligence Commons, Business Organizations Law Commons, Corporate Finance Commons, Evidence Commons, Finance and Financial Management Commons, and the Securities Law Commons Recommended Citation Peter B. Oh, Gatekeeping, 29 Journal of Corporation Law 753 (2004). Available at: https://scholarship.law.pitt.edu/fac_articles/134 This Article is brought to you for free and open access by the Faculty Publications at Scholarship@PITT LAW. It has been accepted for inclusion in Articles by an authorized administrator of Scholarship@PITT LAW. For more information, please contact [email protected], [email protected]. Gatekeeping Peter B. Oh* ABSTRACT Gatekeeping is a metaphor ubiquitous across disciplines and within fields of law. Generally, gatekeeping comprises an actor monitoring the quality of information, products, or services. Specific conceptions of gatekeeping functions have arisen independently within corporate and evidentiary law. Corporate gatekeeping entails deciding whether to grant or withhold support necessary for financial disclosure; evidentiary gatekeeping entails assessing whether expert knowledge is relevant and reliable for admissibility. This article is the first to identify substantive parallels between gatekeeping in these two contexts and to suggest their cross-treatment. Public corporate gatekeepers, like their judicial evidentiary analogues, should bear a duty of reliable monitoring. IN TRODU CTION .................................................................................................... 736 I. CORPORATE G ATEKEEPING ................................................................................... 746 A. Reputational Intermediariesv. CorporateGatekeepers ............................... 747 B. Private v. Public Gatekeepers........................................................................ 755 1I. EVIDENTIARY GATEKEEPING ................................................................................ 766 A. The Economics of Expertise .......................................................................... 767 1. Partisanship .............................................................................................. 768 2. Indeterminacy ............................................................................................ 77 1 B. The Common Law of Expertise ...................................................................... 774 1. R elevance .................................................................................................. 780 2. R eliability.................................................................................................. 782 III. INTRADISCIPLINARY GATEKEEPING ...................................................................... 785 A . Structural Synthesis ........................................................................................ 786 B . Substantive Synthesis ..................................................................................... 790 C. CorporateReliability ..................................................................................... 792 CON CLU SIO N ..........................................................................................................798 Assistant Professor of Law, William Mitchell College of Law. B.A. 1994, Yale College; J.D. 1997, The University of Chicago. E-mail: [email protected]. I thank Steven A. Bank, Barbara Ann Banoff, Maureen B. Cavanaugh, Anupam Chander, Russell L. Christopher, Daniel S. Kleinberger, Jayanth K. Krishnan, Saul Levmore, Gregory Mitchell, Eileen A. Scallen, Howard M. Wasserman, and Tung Yin for their comments, insights, and suggestions at various stages of this project. This paper has benefited from a faculty workshop at William Mitchell College of Law and the International Conference on Industrial Organization, Law & Economics in Greece. The Journalof CorporationLaw [Summer INTRODUCTION Gatekeeping is a metaphor ubiquitous across disciplines and within fields of law. 1 The metaphor describes functions in diverse subjects such as communications, economics, 2 education, 3 political science,4 and psychology.5 And the metaphor crops up 7 8 in legal analyses of commercial systems, 6 criminal procedure, cyberspace, 1. See, e.g., PAMELA J. SHOEMAKER, GATEKEEPING 2 (1991) (citing Kurt Lewin, Channels of Group Life: Social Planning and Action Research, in FIELD THEORY IN SOCIAL SCIENCE: SELECTED THEORETICAL PAPERS 186 (1951)) ("[G]atekeeping is the process by which the billions of messages that are available in the world get cut down and transformed into the hundreds of messages that reach a given person on a given day."). See also EDITORS AS GATEKEEPERS (James J. Fyfe & Rita James Simon eds., 1994); Lewis A. Coser, Publishers as Gatekeepers of Ideas, in PERSPECTIVES ON PUBLISHING 14 (Philip G. Altbach & Sheila McVey eds., 1975); Wilbur Schramm, The Gatekeeper: A Memorandum, in MASS COMMUNICATIONS 175 (Wilbur Schramm ed., 1949). 2. See, e.g., SYLVIA MAXFIELD, GATEKEEPERS OF GROWTH: THE INTERNATIONAL POLITICAL ECONOMY OF CENTRAL BANKING INDEVELOPING COUNTRIES (1998). 3. See, e.g., GATEKEEPING IN BSW PROGRAMS (Patty Gibbs & Eleanor H. Blakely eds., 2000) (containing articles about how administrators and educators in Baccalaureate Social Work (BSW) programs act as gatekeepers for the profession); JACQUES STEINBERG, THE GATEKEEPERS: INSIDE THE ADMISSION PROCESS OF A PREMIER COLLEGE (2002); Andrea Guerrero, Silence at the CaliforniaLaw Review, 91 CAL. L. REV. 1183, 1204 (2003) (referencing the Law School Admission Test as a '"gatekeeping' device"); Linda S. Moore & Charlene A. Urwin, Gatekeeping: A Model for Screening BaccalaureateStudents for Field Education, 27 J. SOCIAL WORK EDUCATION 8 (1991). 4. See, e.g., Arthur T. Denzau & Robert J. McKay, Gatekeeping and Monopoly Power of Committees: An Analysis of Sincere and Sophisticated Behavior, 27 AM. J. POL. SCI. 740 (1983); David Epstein, An Informational Rationale for Committee Gatekeeping Power, 91 PUB. CHOICE 271 (1996) (describing the gatekeeping power of congressional committees as the capacity to control the flow of information and obstruct legislation); Tim Groseclose & Keith Krehbiel, Gatekeeping (Mar. 13, 2002) (gatekeeping is a procedural right existing in collective-choice institutions to enforce the status quo), available at http://www.yale.edu/las/conference/papers/GateV9.pdf (last visited Sept. 19, 2004); James M. Snyder, Jr., Gatekeeping or Not, Sample Selection in the Roll CallAgenda Matters, 36 AM. J. POL. SCI. 36 (1992). 5. See, e.g., E. RAE HARCUM & ELLEN F. ROSEN, THE GATEKEEPERS OF PSYCHOLOGY: EVALUATION OF PEER REVIEW BY CASE HISTORY (1993) (regarding peer review evaluators as gatekeepers of scientific literature). 6. See, e.g., Ronald J. Mann, Regulating Internet Payment Intermediaries, 81 TEX. L. REV. 681, 708 (2004) (suggesting banks operate as a "gatekeeper that will both monitor the [intemet] intermediary to ensure that it behaves appropriately and exclude those that cannot be induced to behave appropriately"), available at http://ssm.com/abstract--446420 (last visited Sept. 19, 2004); George G. Triantis, The Interplay of Liquidation and Reorganization in the Bankruptcy Systems of Canada and the United States: The Role of Screens, Gatekeepers, and Guillotines, in ECONOMIC DIMENSIONS IN INTERNATIONAL LAW: COMPARATIVE AND EMPIRICAL PERSPECTIVES 449 (Jagdeep S. Bhandari & Alan 0. Sykes eds., 1997). 7. See, e.g., Allen Ides, Habeas Standards of Review Under 28 U.S.C. § 2254(d)(1): A Commentary on Statutory Text and Supreme Court Precedent, 60 WASH & LEE L. REV. 677, 679 (2003) ("[S]ubsection (d)(1) is enormously important because it performs a gatekeeper function for federal habeas review of state court judgments."); Daniel Richrnan, Prosecutorsand Their Agents, Agents and Their Prosecutors, 103 COLUM. L. REv. 749, 758-67 (2003) (analyzing the "Prosecutorial Gatekeeping Monopoly"); Samuel C. Seiden & Karine Morin, The Physician as Gatekeeper to the Use of Genetic Information in the CriminalJustice System, 30 J. L. MED. & ETHICS 88 (2002). 8. See, e.g., Michael R. Baye & Roy John Morgan, Information Gatekeepers on the Internet and the Competitiveness of Homogeneous Product Markets, 91 AM. ECON. REV. 454 (2001) (examining gatekeepers that charge fees to firms for information that consumers acquire and transmit); Neal Kumar Katyal, Criminal 2004] Gatekeeping 12 environmental agencies, 9 health care, 10 insurance policies,'1 intellectual property, international issues, 13 judicial roles, 14 litigation strategy, 15 securities regulation, 16 and Law in Cyberspace, 149 U. PA. L. REV. 1003, 1099-1100 (2001) (referencing lack of incentives for intemet service providers to behave as gatekeepers). 9. See, e.g., David L. Markell, "Reinventing Government": A ConceptualFramework for Evaluating the ProposedSuperfund Reform Act of 1994's Approach to IntergovernmentalRelations, 24 ENVTL. L. 1055, 1067 (1994) (discussing Environmental Protection Agency's role as a gatekeeper in the Superfund context). 10. See, e.g., Richard L. Cohen & Alexander J. Ciocca, InstitutionalReview Board: Ethical Gatekeeper, in RESEARCH FRAUD IN THE BEHAVIORAL AND BIOMEDICAL SCIENCES 204 (David
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