John C. Coffee, Jr.: A Selective Annotated Bibliography

The Coif Distinguished Visitor Lecture Series
“Gate Keepers: The Role and Reform of the Professions in Corporate Governance.”
October 19, 2005

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This selective bibliography includes a selection of recent articles relevant to Professor Coffee’s topic. The articles are listed in reverse chronologic order, with the most recent article first. The articles are all available at the Gordon D. Schaber Law Library Reserve desk and, as noted, may also be found on Westlaw (WL), LexisNexis (LN), or Hein Online (HO).

If you need assistance obtaining any of these articles, please contact your Librarian–Liaison.

Gatekeeper Failure and Reform: The Challenge of Fashioning Relevant Reforms . 84 Boston U.L. Rev. 301 (April, 2004). WL, LN, HO.

The premise of this article states that the “2001-2003 epidemic of financial irregularity cannot be satisfactorily explained” by “explanations…of greed and morality…because they depend on subjective trends that cannot be reliably measured.” The author’s alternative explanation is “namely, that the gatekeepers failed.” In part I, the article “offers a diagnosis” that the changes in executive compensation in the 1990s were a destabilizing force “that led managers to overreach gatekeepers.” Part II “approaches the task of prescription,” noting that “courts in today’s ‘post-Enron’ environment appear to be enhancing the risk of legal liability on their own through the creative reinterpretation of ambiguous doctrines.” Part III suggests “a structural reform: namely, imposing gatekeeper responsibilities on attorneys to monitor their corporation’s disclosures, with a special emphasis on non-financial disclosures” and considers whether a gatekeeper role for an attorney will conflict “with other roles that attorneys perform or that it will dry up the flow of information between attorneys and clients.”

Partnoy's Complaint: A Response . 84 Boston U.L. Rev. 377 (April, 2004). WL, LN, HO.

A response to Professor Partnoy’s article, Barbarians at the Gatekeepers?: A Proposal for a Modified Strict liability Regime, 79 Wash. U.L.Q. 491 (2001), this article “attempts to strike a balance between the polar positions of those who favor strict liability…and recent critics who believe it would produce market failure.” Discusses the areas of difference between their respective views with reference to both primary and secondary market transactions in sections on “The Contractarian Fallacy,” “Damages Under Strict Liability,” and “Attorneys as Gatekeepers.”

What Caused Enron? A Capsule Social and Economic History of the 1990s . 89 Cornell L. Rev. 269 (January 2004). Symposium: Enron and the Future of U.S. Corporate Law and Policy. WL, LN, HO.

Aptly described by the title, this article suggests that the “explosion of financial irregularity…was the natural and logical consequence of trends and forces that had been developing for some time, and determines that “a focus on gatekeepers and managers provides a better perspective for analyzing what caused these scandals and the likely impact of the recent congressional legislation passed in their wake.” Sections include a review of American corporate governance structure as of 1980; an examination of the change in the governance paradigm during the 1990s as well as changes to the gatekeeping role during this same period; explanations for gatekeeper failure via deterrence (“the Under-deterred Gatekeeper) and the “Irrational Market Story”; allocates responsibility among three groups, the managers, the investors, and the gatekeepers; and, finally “provides a perspective on the likely impact of Congress’s efforts to address these recent scandals in the Sarbanes-Oxley Act.”

The Attorney as Gatekeeper: An Agenda for the SEC . 103 Colum. L. Rev. 1293 (June 2003). Symposium: Regulating the Lawyer: Past Efforts and Future Responsibilities. WL, LN.

This article examines “arguments that attorneys make inferior gatekeepers and replies that securities attorneys can and do perform a limited “gatekeeping” function and that imposing such obligations on attorneys should neither chill socially desirable client communications nor reduce the attorney’s influence over the client…Finally, this essay proposes specific standards and obligations that the SEC might adopt to enhance the securities attorney’s role as a gatekeeper. Going beyond the current ‘noisy withdrawal’ issue, it proposes both limited certification and independence standards.”

Understanding Enron: "It's About the Gatekeepers, Stupid". 57 Bus. Law. 1403 (August 2002). WL, HO.

While “Enron’s implosion…was organizationally unique” the author posits that if “viewed from another perspective…Enron does furnish ample evidence of a systematic governance failure…Enron is a demonstration of gatekeeper failure.” This “Comment offers some explanations” for “an apparent failure in the market for gatekeeping services,” and starts by asking not “why did some managements engage in fraud? But…rather: Why did the gatekeepers let them?”

Prepared by Judith A. Flader, Head of Public Services