Spring 2013 Business Law Symposium 

“Agency Theory: Still Viable?”

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Overview

The Wake Forest Law Review will host its Spring 2013 business law symposium on Friday, March 22, at the School of Law.  The Symposium, for which Professor Alan Palmiter is serving as faculty adviser, will address whether the assumptions about human motivations implicit in modern agency theory are still viable.

Michael Jensen, who in 1976 expounded the agency costs theory of the modern corporation, will give the keynote talk.  In addition, a panel of distinguished scholars will consider whether contemporary corporate governance mechanisms — such as executive compensation, board composition, and effective oversight of management by independent directors, institutional investors, financial intermediaries, and the media — are producing the promised benefits of reducing agency costs within modern business corporations.

Video footage of the symposium can be found here.

Abstracts of the speakers’ papers can be found here.

Agency Theory: Still Viable?

Schedule of Events

8:30 Welcome – Dean Blake Morant

8:35 Opening Remarks 

Alan Palmiter Associate Dean of Graduate Programs, Howard L. Oleck Professor of Business Law at Wake Forest University School of Law
Sponsoring Professor and Moderator
Andrew Verstein Assistant Professor of Law at Wake Forest University School of Law
Honorary Guest

8:50 Session 1 

Jayne Barnard Cutler Professor of Law, Kelly Professor of Teaching Excellence at William and Mary Marshall-Wythe School of Law
“Shirking, Opportunism, Self-Delusion and More: The Agency Problem Lives On”
Doug Branson W. Edward Sell Professor of Business Law at University of Pittsburgh School of Law
“Proposals for Corporate Governance Reform: Six Decades of Ineptitude and Counting”
Jaap Winter Professor of Corporate Governance at University of Amsterdam, Duisenberg School of Finance

10:15: Break

10:25: Session 2 

Charles M. Elson Edgar S. Woolard, Jr. Chair in Corporate Governance, Professor of Finance, Director of the John L. Weinberg Center for Corporate Governance at Alfred Lerner College of Business & Economics, University of Delaware
“Surplus, Agency Theory, and the Hobbesian Corporation”
Craig Ferrere Edgar S. Woolard, Jr. Fellow in Corporate Governance, John L. Weinberg Center for Corporate Governance at University of Delaware
“Surplus, Agency Theory, and the Hobbesian Corporation”
Wulf A. Kaal Associate Professor at University of St. Thomas School of Law
“Dynamic Regulation of the Financial Services Industry”

11:15: Break

11:25: Session 3 

Barbara Black Charles Hartsock Professor of Law, Director of the Corporate Law Centerat University of Cincinnati College of Law
“Curbing Broker-Dealers’ Abusive Sales Practices: Does Professor Jensen’s Integrity Framework Offer a Better Approach?”
Kenneth Rosen Associate Professor of Law at University of Alabama School of Law
“Financial Intermediaries as Principals and Agents”

12:15: Break for Lunch

1:30: Keynote Speaker 

Michael Jensen Jesse Isidor Straus Professor Business Administration, Emeritus at Harvard Business School

2:30: Break

2:40: Session 4

Rob Nash Professor and Orr Fellow in Finance at Wake Forest University School of Business
“The Impact of National Culture on Corporate Financial Decisions”
Ajay Patel Professor and GMAC Chair in Finance, Director of the Center for Enterprise Research and Education at Wake Forest University School of Business
“The Impact of National Culture on Corporate Financial Decisions”
Donna M. Nagy Executive Associate Dean for Academic Affairs, C. Ben Dutton Professor of Law at Indiana University at Bloomington, Maurer School of Law
“Owning Stock While Making Law: An Agency Problem and a Fiduciary Solution”
Angel Oquendo George J. and Helen M. England Professor of Law at University of Connecticut School of Law
“Six Degrees of Separation: From Derivative Suits to Shareholder Class Actions”

4:00: Closing Remarks

4:15: Refreshments (Courtyard)

 

Symposium Videos

Abstracts

Professor Jayne Barnard- William and Mary Marshall-Wythe School of Law

“Shirking, Opportunism, Self-Delusion and More: The Agency Problem Lives On”

One would think, after nearly a century of effort to limit the self-serving and wealth-destroying practices of corporate executives, that Americans could now feel confident that the goals of our corporate boards and CEOs were fully-aligned with those of their investors. We should now be able to observe these men and women acting with integrity, diligence, and grace.

Investor anxiety about shirking, opportunism, self-promotion, and greed should be, one would think, an artifact of the past.

Alas, we cannot say we have achieved that enlightened state of affairs.  It is still all too possible to find evidence of executive corruption, mendacity, and hubris.  All the gatekeepers, media scolds, scholarly inquiries, and judicial sermons aimed at curbing the agency problem have failed to restrain the worst in human impulses.


Professor Barbara Black- University of Cincinnati College of Law

“Curbing Broker-Dealers’ Abusive Sales Practices: Does Professor Jensen’s Integrity Framework Offer a Better Approach?”

There is a vigorous debate over the appropriate standard of conduct for regulating the sales practices of broker-dealers that provide advice to retail investors.  In this essay I focus on five types of investments that have recently been the subject of regulatory action:  auction rate securities, private placements, non-traded real estate investment trusts, proprietary mutual funds and variable annuities.  I explore whether Michael Jensen’s integrity framework offers another approach to improving broker-dealer sales practices.   Can a culture of honoring your word be instilled in the brokerage industry, which is a business where salesmanship is paramount?


Professor Doug Branson- University of Pittsburgh School of Law

“Proposals for Corporate Governance Reform: Six Decades of Ineptitude and Counting”

The primary authors of governance reform in this country seem to espouse a new and different reform with near clockwork regularity, in five year intervals, since at least 1965 and possibly earlier.  Very few, if any, aspects  of the reforms proposed have any connection with reality.  A principal reason is that espousal of these faux “reforms” is limited to a very small number of academics who teach at elite U.S. educational institutions.  They speak to and interact only with each other, snugly ensconced in what truly is an ivory tower.  The results is that many of the key issues with which governance should be dealing today, such as corruption, diversity, or multinationals’ code of conduct and their enforcement, receive little attention, and none by the purported reforms who occupy center stage.


Professor Charles Elson & Mr. Craig Ferrere – University of Delaware

“Surplus, Agency Theory, and the Hobbesian Corporation”

Agency theory tends to approach the problems of business organization with an adversarial conceptual framework.  In this view, the structures within a corporation are intended to mitigate the problems and costs associated with the tendency for the agent’s interests to diverge from those of the principals.  We argue that the corporation should be viewed instead from a perspective which emphasizes cooperation.  Rather than primarily addressing agency problems, corporate structures act to leverage and accumulate institutional knowledge through cooperative efforts.  We emphasize the firm-specific nature of the skills and knowledge which are essential to the enterprise’s success.  We also point out that firm-specific knowledge is acquired by employees in a process of gradually learning by doing over extended periods.  Also, the amount of this information which must be learned and used increases as the employee is promoted upwards in the hierarchy.   Additionally, the dynamic process of learning by doing creates a situation where the agent may know more than the principal about the appropriate corporate goals and objective function.  Accordingly, the “tournament theory of internal promotions,” to use an illustrative corporate structure, does not need to be understood as a response to incentive problems.  Rather, tournaments facilitate gradual learning of the required knowledge which expands with subsequent promotions and allows for an open-ended set of performance objectives to be developed through time.  Significant employee stock ownership complements this by affecting a division of surplus amongst the employees who have committed their human capital.


Professor Wulf Kaal- University of St. Thomas School of Law

“Dynamic Regulation of the Financial Services Industry”

Governance adjustments via stable rules in reaction to a systemic shock can result in suboptimal governance outcomes, market volatility, and economic loss. The economic conditions and the corresponding requirements for optimal and stable rules are constantly evolving. Globalization, financial innovation, ethical challenges, and the bounded rationality of decision makers, among many other factors, will likely result in future crises, requiring perhaps even more extensive governance adjustments. However, anticipation of future developments and preemption of possible future crises do not play a significant role in the current regulatory framework and academic literature. This paper explores how a dynamic approach to regulating the financial industry could help address the shortcomings of inflexible rules, including the need for perpetual rule enactment, adjustment, and revision


Professor Donna Nagy- Indiana University at Bloomington, Maurer School of Law

“Owning Stock While Making Law: An Agency Problem and a Fiduciary Solution”

It focuses on Members of Congress and their widespread practice of holding personal investments in companies that are directly affected by legislative action.  Although the idea of lawmakers as fiduciaries is hardly a new one, the implementation and enforcement of fiduciary principles – most particularly the duty of loyalty — is frequently overlooked as a meaningful solution to agency problems in politics.   After exploring the legal rules that guard against self-interested decision-making by corporate directors as well as by government officials in the executive and judicial branches of the federal government, the paper will propose new restrictions on the personal investments that Members of Congress may hold during their service as public fiduciaries.


Professor Angel Oquendo- University of Connecticut School of Law

“Six Degrees of Separation: From Derivative Suits to Shareholder Class Actions”

Derivative suits differ in essence from shareholder class actions.  The former involve genuinely collective claims; the latter, an aggregation of individual claims.  The two kinds of suit additionally give rise to dramatically different challenges.  Derivative suits inevitably undermine the group’s autonomy, inasmuch as they allow any shareholder to bypass the legitimately elected board of directors.  Shareholder class actions, like class actions in general, compromise the procedural rights of absent class members.

Grasping the difference at stake will, on the one hand, aid courts in distinguishing between the two types of action.  It will also, on the other hand, facilitate understanding what collective rights are all about.  Specifically, one will be able to perceive that a genuinely collective right is not, by necessity, politically or philosophically problematic and that the aggregation of individual entitlements does not really give rise to a collective entitlement.


Professors Ajay Patel & Robert Nash – Wake Forest University School of Business

“The Impact of National Culture on Corporate Financial Decisions”

Financial economists have identified that many tools to manage agency relationships (such as the choice of capital structure or the design of executive compensation) are frequently used very differently in different countries.  To some observers, this inconsistency in the cross-sectional application of these contemporary corporate governance mechanisms may call into question the viability of agency theory.  However, we argue that this cross-sectional variation is consistent with agency theory after taking the nation’s cultural environment into consideration.  Specifically, conflicts of interest exist within all organizations.  However, the potential severity of the conflicts of interest may differ across countries and especially across cultures due to differences in social norms.  We focus on the impact of national culture on the firm’s choice of corporate financial policies. We draw from measures of culture developed in the sociology and psychology literatures (such as Hofstede’s (1980) widely-cited and broadly empirically-verified measures of cultural value dimensions).  We emphasize the aspects of culture that should most directly affect agency conflicts.  For example, Hofstede develops measures of Individualism and Uncertainty Avoidance.  We show how these cultural attributes are likely to directly affect the potential severity of agency conflicts within the firm and thus affect contracting decisions.  We contend that considering the cultural context is a critical step in reconciling the firm’s financial policies with the predictions of agency theory.  Our primary conclusion is that contracting decisions should focus not only on “conflict of interests” but also on “context of interests.”


Kenneth Rosen- The University of Alabama School of Law

“Financial Intermediaries as Principals and Agents”

Financial intermediaries, such as broker-dealers, long have hosted significant agent/principal relationships. Over time the presence of increased regulations were superimposed on these relationships.  Such regulations include both government issued laws and administrative rules as well as a complex web of self-regulatory organization rules. Some might view such codification as supplanting more traditional notions of common law agency theory. However, I will explore how these rules might be viewed as the progeny of agency theory, giving the traditional theory continued importance in understanding the newer rules. Moreover, it is interesting to consider whether the new and older concepts should coexist as “belts and suspenders” holding up incentives for better behavior by the relevant principals and agents.


Jaap Winter- European Corporate Governance Institute

“Agency Theory Ignores Human Behaviour”