June 2022

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Recently, I published a short piece for the Nashville Institute for Faith and Work (NIFW) about Business Ethics in a Pandemic.

As mentioned there, I have found teaching Business Ethics courses extremely challenging, but important. While law can be unclear, the boundaries of business ethics are even more vague. 

Perhaps it is simply because one of my younger brothers is an English professor, but I have been increasingly drawn to using literature in the teaching of business ethics as a way to grapple with the lack of clarity.

So far, I have used the fiction and poetry of Derrick Bell, Wendell Berry, Octavia Butler, Anton Chekov, Ross Gay, Ursula Le Guin, Cormac McCarthy, Mary Oliver, Ranier Maria Rilke, May Sarton, George Saunders, and Leo Tolstoy. Admittedly, this is a bit of an odd mix, but I think each of these writers have something important to say, even if I do not use each of them every semester. 

I remain open to other suggestions, and I plan to rotate in other authors as I continue to teach our business ethics course. (I also hope to write a few longer pedagogy articles in the law & literature and ethics & literature…

I just posted Does Stakeholder Capitalism Have a (Viewpoint) Diversity Problem?, U. Puerto Rico Bus. L.J. (forthcoming) on SSRN (here).  The abstract:

Does stakeholder capitalism have a viewpoint diversity problem? What follows constitutes an initial inquiry into that issue.

Following the Introduction, Part II provides an overview of the Free Enterprise Project’s (FEP’s) 2021 Investor Value Voter Guide, which focuses at least in part on both stakeholder capitalism and viewpoint diversity in a way that provides a good introduction to a perceived tension between the two. This part of the essay contains three sub-parts. Sub-parts A and B provide at least some support for connecting stakeholder capitalism (in all its forms) to partisanship as well as a lack of relevant viewpoint diversity. Sub-part C then unpacks specific proposals that the FEP is submitting and/or recommends supporting/opposing. This sub-part is further broken down into brief overviews of the FEP’s viewpoint diversity and stakeholder capitalism proposals.

Part III shifts attention to related research and commentary. This part includes four sub-parts (A-D). Sub-part A addresses the issue of stakeholder capitalism as greenwashing. Sub-part B addresses some of the possible problems caused by a lack of viewpoint diversity in stakeholder capitalism…

Sean Griffith has posted What’s “Controversial” About ESG? A Theory of Compelled Commercial Speech under the First Amendment on SSRN (here). The abstract:

This Article uses the SEC’s recent foray into ESG to illuminate ambiguities in First Amendment doctrine. Situating mandatory disclosure regulations within the compelled commercial speech paradigm, it identifies the doctrinal hinge as “controversy.” Rules compelling commercial speech receive deferential judicial review provided they are purely factual and uncontroversial. The Article argues that this requirement operates as a pretext check, preventing regulators from exceeding the plausible limits of the consumer protection rationale.

Applied to securities regulation, the compelled commercial speech paradigm requires the SEC to justify disclosure mandates as a form of investor protection. The Article argues that investor protection must be conceived on a class basis—the interests of investors qua investors rather than focusing on the idiosyncratic preferences of individuals or groups of investors. Disclosure mandates that are uncontroversially motivated to protect investors are eligible for deferential judicial review. Disclosure mandates failing this test must survive a form of heightened scrutiny.

The SEC’s recently proposed climate disclosure rules fail to satisfy these requirements. Instead, the proposed climate rules create controversy by imposing a political viewpoint…

I wanted to make two quick follow-ups to last week’s post on FTX’s proposed new clearing model for retail customers.  First, I highly recommend reading the recent FT Alphaville piece Did a major financial institution kinda maybe slightly default in March 2020? (FT subscription required) Among other things, it highlights remarks made by some participants during last week’s CFTC Staff Roundtable on Disintermediation relating to the potential cost of largely removing human discretion from the clearing risk management process (thanks to today’s Money Stuff by Matt Levine for bringing this piece to my attention!).  Second, a recent article by Rebecca Lewis and David Murphy, What Kind of Thing Is a Central Counterparty? The Role of Clearinghouses As a Source of Policy Controversy, does an excellent job of discussing clearing for BLPB readers who want to learn more about this area.  Murphy was among the participants in the CFTC Staff Roundtable!  I highly recommend this piece!  Here’s the abstract:

“Public policy surrounding central counterparties (‘CCPs’) is beset by conflicts between stakeholders. These turn on who bears which risks, who profits from clearing, and who has what say in CCP governance. They involve CCP equity holders, clearing members, clients, regulators…