Fordham Journal of Corporate & Financial Law
journalists, financial journalists, corporate governance
This Article pursues the important theme of disclosure, but focuses on a feature that has remained almost entirely overlooked by corporate and securities law scholars: the role of financial journalists in corporate governance. This omission is perhaps due to the fact that journalists do not fit easily into a legal discussion because they are largely unregulated. They are, in a sense, not legal actors, and, therefore do not comfortably become the subject of a legal prescription. Nevertheless, journalists contribute in many ways to the legal system at large and the system of corporate governance in particular.This Article uses case studies to highlight the importance of financial journalists in our scheme of corporate law by identifying and illustrating several distinct ways that journalists contribute to our system of corporate governance. It is beyond the scope of this Article to fully explain the mechanisms whereby journalistic reporting affects attitudes and actions, whether on the part of the public at large, legislators, judges, prosecutors or corporate directors and officers. Nonetheless, the case studies suggest causal links between the reporting described and the consequences for corporate governance that follow. Rather than attempting to undertake a thoroughgoing empirical exploration of the track record of financial journalists' contributions to corporate governance, this Article presents an overview that surveys the terrain, setting out markers for future empirical, theoretical, and doctrinal inquiry. In so doing, this Article creates a research agenda for scholars who wish to pursue the issues explored herein more rigorously, in order to deepen our understanding of the way journalists affect corporate governance.Part I reviews the structure of corporate law in order to demonstrate where journalists fit in. Part II contextualizes the role of journalists in corporate law by addressing several preliminary issues: the sorts of roles they are not well suited to fill, the incentives under which they operate, how they get their information and the relationship between shaming and my view of journalistic enforcement. Part III explores the numerous roles that journalists can and do fill in the corporate governance system. Among these are uncovering and deterring fraud, and acting as an informational intermediary that catalyzes and informs legal action by Congress, the SEC, the courts, shareholders, or private litigants. Along the way I will highlight the conflicts of interest that afflict virtually every actor in the system of corporate governance, and argue that financial journalists enjoy a convergence of their public and self-interests, and thus can help to bring these other actors' conflicting interests into alignment.One possible objection to a theory of journalistic enforcement of corporate law is that securities analysts are in a better position than journalists to ferret out financial fraud. In Part IV, I consider the role of analysts--their competencies and conflicts--and compare them to those of journalists. This comparison does not yield an easy answer as to which set of professionals serve as the better enforcer. Rather, the comparison serves as a basis for reflecting on the ways journalists and analysts might interact to improve the overall efficiency of the corporate system.
Michael Borden, The Role of Financial Journalists in Corporate Governance, 12 Fordham Journal of Corporate & Financial Law 311 (2007)