Sunday, November 11, 2012

Let's see if I can get this straight....

Affairs aren't good things, I know.  But let's do some calculus:

CIA Director has affair, has to resign.  I get that, although I'm saddened by that, because I had a great deal of respect for him.

Incoming Lockheed CEO has affair, gets fired--and gets $3.5MM in severance pay.  Huh?

Tuesday, September 25, 2012

It's the incentives.

In today's special Dealbook section on BigLaw, there's a great article about the culture of firms like Cravath (here).  What I found especially interesting was the notion that taking out the eat-what-you-kill types of incentives, as well as the "if we don't pay them a lot of money, they'll leave" instincts, leads to a firm where people aren't necessarily cutthroat and still get to do very interesting work.

Not a big surprise.  After all, people work to fulfill the incentives given to them.  The people who focus on salary (see "anchoring effect"), at least after they reach the "comfortable living" threshold, seem to me to be among the most unhappy people.  I've had colleagues at every place I work whose mission in life seems to be to ferret out everyone else's salary and then sulk if they're not at the tippy-top of the list.  (They also tend to taunt the higher-paid among their colleagues.)

So when folks are paid in lockstep, they have to find their self-worth in other areas, such as the quality of the work they're getting, or the opportunities to do new and interesting work. 

Folks who head up organizations should take note.  It cannot be true that people need to be at the top of the pay scale to be happy.  And, because we don't live in Lake Wobegone, not everyone can be at the top of the pay scale.  Giving people opportunities and--when the money is there--raises is important.  Placing people into ordinal rank by salaries alone isn't.

Sunday, September 23, 2012

My value as a director of a public board.

Recently, I was asked by a wonderful executive search firm to consider, well, being considered for a director position on a corporate board.  Those positions are hard to come by for folks like me, who serve on several non-profit boards but haven't broken into the ranks of public boards. 

So why my hesitancy?  The company was looking to diversity (no problem there),* but it wanted someone who could serve on the audit committee.  That's not in my wheelhouse, as they say.  Clint Eastwood said it best:  Man's got to know his limitations.

I'm smart.  But I don't have the background or education to do justice to an audit committee's work.  I know my limitations.

What would I be good at doing?  Risk management?  Check.  Board dynamics?  Check.  Compensation?  Check, check, check.

So I'm waiting, and with a lot of luck and some great friends, maybe another public board will consider me for things for which I actually can add value.

* Re diversity:  That's a tricky issue for me.  I know that some of my experiences as a woman are different from those of my male colleagues.  But many (most?) of them aren't.  Being a woman, by itself, doesn't automatically add the type of diversity that boards need.  (The fact, though, that precious few boards have any women or minorities on them is a problem.  When everyone on a board has the same background, then there's no one there to look at things from a different perspective.)  My diversity may come in part from being a woman (and that's likely the diversity factor that put me under consideration in the first place), but it's also from being an academic who studies governance and the mistakes that smart people often make.  It comes from my having had to lead some businesses in the past (two law schools before, and one now as an interim dean).  I know what paying attention to budgets means, and I know how important it is to have a strong team and talented colleagues.  I know I can add value, but only to a company that understands what I bring to the table.

A very smart op-ed about executive pay.

By Gretchen Morgenson, whose columns I always like.  Here.

Monday, August 27, 2012

Neil Armstrong on what constitutes a good work ethic.

Here.  And my favorite quote in this Wall Street Journal piece?
I can only attribute that to the fact that every guy in the project, every guy at the bench building something, every assembler, every inspector, every guy that's setting up the tests, cranking the torque wrench, and so on, is saying, man or woman, "If anything goes wrong here, it's not going to be my fault, because my part is going to be better than I have to make it." And when you have hundreds of thousands of people all doing their job a little better than they have to, you get an improvement in performance.
R.I.P., Neil Armstrong

Friday, August 10, 2012

Frank Partnoy on the lawyers involved in the Standard Chartered scandal.

HereHe said it perfectly.  My favorite part of his Financial Times piece?
We know bankers can be ruthless when pursuing profits. But bank lawyers are not supposed to think like bankers. Decades ago, the general counsel of a bank thought more about ethics than efficiency. But today’s in-house counsel are often profit centres, fonts of wisdom on how to avoid accounting rules, cut taxes and maintain the secrecy of dubious practices. One reason for the recent wave of abuses at big banks is that their in-house lawyers have been more focused on speed and profit than on right and wrong.
And that's why it's important to focus on more than the bottom line.

Wednesday, June 20, 2012

Is stealing worse than lying?

The NYT's Dealb%k* feature is one of my favorite parts of the newspaper, and this morning's column (here) was no exception.  In today's column, the very smart Steven Davidoff makes an interesting argument that Jeff Skilling may have been less culpable than Bernie Madoff and should therefore have his sentence reduced.  His argument is a perfect demonstration of the principle that reasonable people can disagree.  I disagree with his rank-ordering of stealing and lying.

Here's a key paragraph from today's column:
But if Mr. Skilling did lie, as the jury found, that does not make his sentence right. It all boils down to whether there is a difference between lying — that is, telling an untruth — and stealing, or taking something that does not belong to you. Some may argue that they are equally bad, but the difference comes out in comparing Mr. Skilling with other recent financial criminals.
Professor Davidoff and I part ways when it comes to this comparison.  Had Jeff Skilling merely been negligent in his management, his negligence would have been awful, but it wouldn't have been intentional, the way that outright lying is intentional.  Even if Enron did disclose what it was doing (albeit in vague footnotes in its SEC filings), and even if all of the warning signs about Enron were out there (which they were), there's still a problem with Enron's intentional misrepresentations about the financial health of the company.  Those half-truths and sneaky partial disclosures may not have fooled sophisticated financial folks, but they fooled most normal people.  Fooling folks meant that the market had nowhere near the "perfect information"** that Enron investors wanted, and that led in part to the losses that Enron investors incurred.

Lying prevents the non-specialist from being able to make intelligent decisions.  Let's say that my car has some sort of a hiccup going on, and I take it to my mechanic.  The mechanic will see all sorts of things going on with my car that are obvious to him but not at all obvious to me.  He can make a better decision about what to do than I can, even though we have equal access to the information.  Let's say that he lies to me about the severity of a particular problem, saying that the cost to fix the problem is several times higher than it should be.***  I'm likely to follow his recommendation about what to do, even though it'll be more expensive than it should be. 

Lying makes the already opaque market worse, which in turn causes people to make worse investment decisions.  That's why lying and stealing are equally bad, in my view.

Sorry, Professor Davidoff.  But I still love your work.

*  The column's name is Deal%k, with the "%" sign in the name.  I could've written "Dealb[oo]k," but "Dealb%k" is just a much better name.

**  I've yet to see a market that has perfect information, but it'd be nice to see one with truthful information all the way down the line.

*** Note to my mechanic:  I'm talking about a hypothetical mechanic, not you.  You wouldn't lie to me.

Monday, June 11, 2012

No consequences? That's why LinkedIn was hacked.

See story (here).  Oh, part of the problem is that smart people tend to forget that bad things can happen to them.  Part of the problem is flat-out hubris.  But the biggest problem?  If there are no real consequences to bonehead mistakes, then the incentive to avoid those mistakes is very, very low. 

Will heads roll at LinkedIn?  Maybe.  But I don't know if the right heads will roll.  Unless the folks at the very top feel the consequences, then the wrong people will learn the lesson about not protecting passwords.

Sunday, April 15, 2012

Quite sensible suggestions, really.

And quite likely, they'll be impossible to implement, unfortunately (here), thanks to the bureaucracy.

Friday, April 13, 2012

A good op-ed on how regulation doomed Titanic.

See Chris Berg's opinion piece in the Wall Street Journal about how Titanic's owners' decision to comply with the regulations on the number of lifeboats caused one of the most fundamental errors contributing to the sinking (here).  Were there the "appropriate" number of lifeboats?  No.  But were there the legally required number of lifeboats?  Yes, plus four more.  And yet, there were too few lifeboats by far.

When a regulation bears little relationship to the underlying reason for the regulation, it's actually worse than useless.

Wednesday, March 14, 2012

What do you get when conflicts are ubiquitous?

You get people who wake, as if from a dream, to realize that what they've been doing has (a la Arthur Andersen) come 180 degrees away from the firm's original culture (see Greg Smith's NYT op-ed, here) and what they've been facilitating hasn't been nearly as clean as it should have been (see Andrew Ross Sorkin's NYT Dealbook columns here and here).

Greg Smith's "Why I Leaving Goldman Sachs" includes this paragraph:
It might sound surprising to a skeptical public, but culture was always a vital part of Goldman Sachs’s success. It revolved around teamwork, integrity, a spirit of humility, and always doing right by our clients. The culture was the secret sauce that made this place great and allowed us to earn our clients’ trust for 143 years. It wasn’t just about making money; this alone will not sustain a firm for so long. It had something to do with pride and belief in the organization. I am sad to say that I look around today and see virtually no trace of the culture that made me love working for this firm for many years. I no longer have the pride, or the belief.
Mr. Smith is right about the importance of leadership in a firm's culture.  It matters that a company's officers and directors reward the right behavior and punish the wrong behavior.  But what I liked most about Mr. Smith's op-ed is that it recognizes that culture isn't up to the C-level suite and the board alone.  Senior people have to reinforce the culture all the way down the line.  They have to watch what their people do and say (and reinforce the right behavior).

As I've said before, the problem isn't that all people are evil.  It's that all people are human, and humans have an unlimited capacity to fool themselves into thinking that what they're doing is the right thing to do, even when it isn't.  When senior people rationalize their behavior, a company's decline isn't far behind.

As for the board, it can start thinking about how to turn around this very important company, or it can continue down the same path.  I'll be interested in watching what happens.

Wednesday, March 7, 2012

Conflicts of interest redux.

Andrew Ross Sorkin wrote a great piece in yesterday's New York Times about the "heads I win, tails you lose" approach that Goldman Sachs seems to have used in the El Paso-Kinder Morgan deal (here). 

Lots of people think that mere disclosure of conflicts will cure each and every one of them.  Sure, disclosure will cure some, especially with sophisticated clients.  But even with the most sophisticated clients, disclosure is a tough thing to get right.  Disclose too little, in consideration of each client's confidential information, and the consent to the conflict isn't very "informed."  Disclose too much, and the clients' confidential information goes out the window.

I'm going to guess that most of the time, the disclosure is too little, not too much.  And that's not just right.

Why I should be on a public board that could use my expertise, part n.

See Luke Johnson's opinion piece in the Financial Times (here).  How difficult is it to fix boards that have become hotbeds of infighting?

Really, really difficult. 

It's that old lightbulb joke:

How many psychiatrists does it take to change a lightbulb?  One, but the bulb really has to want to change.

Tuesday, February 21, 2012

David Skeel on what's wrong with the mortgage settlement.

In one of Prof. Skeel's typically astute op-eds, he explains what's wrong with the settlement proposed by the state attorneys general (here).

Wednesday, February 15, 2012

Best quote in an op-ed referencing Nozick.

John Kay's piece in the Financial Times (here) includes this wonderful paragraph, which applies to corporate pay and the pay of estate professionals in bankruptcy cases:
And again, problems arise when people voluntarily hand over money that is not their own. John Kenneth Galbraith once described executive pay as a warm personal gesture by the beneficiary to himself. In today’s world of remuneration committees, it is more often a warm personal gesture by friends to each other. 

Tuesday, February 14, 2012

A must-get book if you're interested in Ponzi schemes.

Check out The Ponzi Book (here).  This book is for professionals who find themselves in the middle of a Ponzi scheme and need to understand the overlap among state corporate law, other state law, bankruptcy law, criminal law, and jurisdiction (to name just a few).  Here's the Table of Contents.

Were I to find myself in the middle of litigating a Ponzi scheme, this book would be the first one I'd open.

Tuesday, February 7, 2012

My Dad found this post for me.

See here.  Loved it.

Groupthink revisited (revisited again).

A few weeks after I wrote this post (here), I came across this study (here) discussed in the Wall Street Journal.  It gives some insight into why smart people might not speak up in small groups. 

What happens when smart people don't speak up--or when people don't listen to them?  See here.

Saturday, January 14, 2012

Groupthink, revisited.

It's always interesting when the New York Times and the Wall Street Journal intersect (usually, they're two different worlds).  Today's WSJ story (here) suggests that rotating accounting firms will help in avoiding the too-close relationship that develops between the accounting firm and the client over time, and today's NYT article (here) suggests that the combined ideas of many aren't always better than the solitary ideas of a single smart person.

Reminds me of one of my favorite websites (here).  In particular, check out this one and this one