Article by William W. Bratton
This Article addresses the implications that the Enron collapse holds out for the self-regulatory system of corporate governance. The case shows that the incentive structure that motivates actors in the system generates much less powerful checks against abuse than many observers have believed. Even as academics have proclaimed rising governance standards, some standards have declined, particularly those addressed to the numerology of shareholder value. The Article's inquiry begins with Enron's business plan. The Article asserts that there may be more to Enron's “virtual firm” strategy than meets the eye beholding a firm in collapse. The Article restates the strategy as an application of the incomplete contracts theory of the firm that prevails in microeconomics today and asserts that Enron failed because its pursuit of immediate shareholder value caused it to misapply the economics, mistaking its own inflated stock market capitalization for fundamental value. The Article proceeds to Enron's collapse, telling four causation stories. This ex ante description draws on information available to the actors who forced Enron into bankruptcy in December 2001. The discussion accounts for the behavior of Enron's principals by reference to the shareholder value norm and Enron's corporate culture. Finally, the Article takes up the self-regulatory system of corporate governance, asserting that the case justifies no fundamental reform. The costs of any significant new regulation can outweigh the compliance yield, particularly in a system committed to open a wide field for entrepreneurial risk taking. If we seek high returns, we must discount for the risk that rationality and reputation will sometimes prove inadequate as constraints. At the same time, we should hold critical gatekeepers, particularly auditors, to high professional standards. The Article argues that present reform discussions respecting the audit function do not adequately confront the problem of capture demonstrated in this case.
About the Author
William W. Bratton. Samuel Tyler Research Professor of Law, The George Washington University Law School; Visiting Professor of Law, Georgetown University Law Center (Spring 2002).
Citation
76 Tul. L. Rev. 1275 (2002)