Shaming in corporate law.

• Author: Skeel, David A., Jr.
• Position: Symposium on Norms and Corporate Law

INTRODUCTION

Shaming is in. Many of the same legal scholars who have recently turned their attention to social norms and questions of social meaning have taken a similar interest in shaming sanctions. The connections are obvious. Shaming sanctions range from requiring drunk drivers to wear T-shirts announcing their crimes to forcing polluters to place advertisements confessing and apologizing for their offenses. One of the common threads that tie these disparate punishments together is that each is designed to elicit moral disapproval from the offenders' fellow citizens. Far more than with penalties such as fines or imprisonment, this moral disapproval is the beginning and end of the punishment. Shaming thus draws on shared social meaning and on norms about permissible and impermissible behavior. Given these links, it is hardly surprising that norms scholars would take a fervent interest in shaming.

From another perspective, however, the recent interest in shaming is somewhat odd. Shaming sanctions work best in close-knit communities in which citizens interact frequently and share common values. Because reputation is so important in this context, citizens will avoid behavior that may lead to shaming and will view shaming as a serious punishment. While American society may once have been characterized by close-knit communities, this seems far less true now. Moreover, a casual glance at the television or a visit to the movies suggests that behavior we once might have viewed as shameful has lost its opprobrium. If we no longer live in communities with shared values and do not recognize shame, what explains the sudden interest in shaming? One explanation is simply that academics are out of touch with real-world conditions, of course, but I will put that possibility to one side. A more likely rationale may be nostalgia. Although the close-knit communities of earlier generations have disappeared, the fascination with shaming, and with norms generally, may reflect a dream that this lost sense of community could be restored. A more optimistic explanation is that community still figures prominently in our national life, but the nature of the relevant communities has changed. This view, that community is alive and well but has simply taken different shapes, has been the most frequent rebuttal to the much-discussed new book Bowling Alone.(1) Bowling Alone documents the decline of community interaction--people bowl alone now, rather than with friends in bowling leagues. Its critics, on the other hand, argue that old-style community organizations like bowling leagues or the Rotary Club have simply given way to more contemporary organizations, such as professional associations.(2)

While I do not purport to offer any final view on these issues in this Article, my analysis will assume throughout, and at least anecdotally demonstrate, that corporations and corporate directors are enmeshed in communities in which reputation does indeed matter. The directors of large U.S. corporations are, in the words of one shareholder activist, "the most reputationally sensitive people in the world."(3) Not only are shaming sanctions a potentially effective penalty for corporations and their directors, they already play a prominent and, in many respects, underappreciated role.

This Article is not the first to explore shaming in the corporate context. Other commentators have discussed, either implicitly or explicitly, the possibility of shaming corporate offenders.(4) Despite this evidence of existing interest, there is much work to be done, and my aim is to extend the literature in at least two respects. First, the Article provides the most detailed examination to date of what we might call the "anatomy" of corporate shaming. I explore the role and limitations of the enforcer--that is, the person who invokes the shaming sanction--the offender, and the enforcement community (or communities).(5) The area in which corporate shaming differs most from shaming in other contexts is in the nature of the offender. With a corporation, the corporation itself, its individual managers or directors, or both, can be viewed as the relevant offender. The Article therefore considers at length the question of who or what should be the target of a shaming sanction. I also examine the relationship between shaming and forms of criticism or disclosure, such as media coverage of a firm's misbehavior, that can have an analogous effect.

Second, and perhaps more important, the Article significantly expands the focus of the shaming inquiry. The existing literature, both in the corporate context and elsewhere, has focused almost entirely on the use of shaming sanctions as a penalty for violating criminal or certain kinds of civil laws, such as noncriminal environmental provisions.(6) From this perspective, the enforcer is always a court. Yet private parties also shame wayward directors and firms. In the corporate law context, shareholder activists and the financial press have made frequent use of shaming techniques. Each time CalPERS, the California state employees' pension fund, publishes a list of underperforming firms, for instance, one of its central goals is to shame the offending firms. To understand corporate shaming more fully, the Article therefore considers the activities of private enforcers rather than just judicial ones.

The Article proceeds as follows. Part I briefly describes the current literature on shaming, focusing in particular on the debate between shaming advocates who argue that shaming sanctions are a promising alternative to traditional punishments and shaming skeptics who worry about unintended effects of judicial shaming. The Part concludes by briefly considering the mechanism by which shaming works and the relationship between shaming sanctions and social norms. Part II shifts from shaming in general to corporate shaming in particular and considers each of the relevant parties to a shaming sanction: the enforcer, the audience or enforcement community, and the offender.

In Part III, the Article shifts from theory to reality and considers three different specific case studies of shaming in action: the use by CalPERS and the financial press of "rosters of shame"; shareholder activists Robert Monks's and Nell Minow's more aggressive shaming campaigns, which included a full-page Wall Street Journal advertisement shaming the directors of Sears by name; and the decision of the Delaware Court of Chancery in a case stemming from alleged Medicaid and Medicare violations by Caremark Industries.

Part IV concludes the Article by considering some of the implications of the analysis, both for the norms literature in general and for the future of corporate shaming. For private enforcers like CalPERS and other shareholder activists, I suggest that the Securities and Exchange Commission ("SEC") could facilitate shaming by forcing offending firms to bear some of the costs of shaming efforts. I also briefly consider the potential effect of low-cost, high-tech, shaming-like activity on the internet. For judicial shaming, I consider how shaming could be fit into the kinds of multifaceted liability schemes that have been proposed in the literature on corporate criminal and tort liability.

1. THE CURRENT DEBATE ABOUT SHAMING

   Shaming sanctions take forms that are as endlessly varied as the human imagination. In the past, we had pillories and branding; now, we have offenders wearing T-shirts that say "drunk driver."(7) To make sense of all this shame, it is useful to begin by defining "shaming" in general terms. "Shaming," as defined by its leading advocate in the legal literature, "is the process by which citizens publicly and self-consciously draw attention to the bad dispositions or actions of an offender, as a way of punishing him for having those dispositions or engaging in those actions."(8) Whereas imprisonment punishes the offender by taking away her physical freedom, shaming takes aim at the offender's reputation or dignity. The enforcer expresses moral outrage at the offender, expecting that the intended audience will respond with similar moral disapproval. Not only does this moral disapproval have a chastening effect on actual offenders, since the effect on their reputation can be devastating and costly, but the possibility of shaming can also discourage potential offenders from misbehaving in the first instance.

   The most famous literary depiction of shaming, Nathaniel Hawthorne's The Scarlet Letter, illustrates the conditions under which shaming sanctions prove most effective.(9) In the New England Puritan community Hawthorne imagined, the town's citizens were closely knit and shared a common set of moral assumptions. The judge who ordered Hester Prynne, the offender, to wear a scarlet letter "A" could be confident that the relevant audience, the town's citizens, would share his moral outrage at her adultery, and of course they did.

   Although the sense of community we associate with the Puritans has long since disappeared in the United States, citizens hold common views about many issues, such as outrage at drunk driving, and nearly all of us participate in one or more communities that share many of the same qualities that once characterized citizens' general, civic lives. In our families or our professions, for instance, relationships often are closely intertwined and our reputations matter a great deal. In these contexts, shaming can be a powerful corrective when individuals violate the shared values of the community.

   Given our fascination with norms, and the interaction between norms and law, it was perhaps inevitable that legal scholars would rediscover the possibilities of shaming sanctions. And they have. Scholars have sharply divided as to whether shaming is a promising new approach to punishing offenders or, as my reference to The Scarlet Letter might suggest, a dangerous and often pernicious practice. The discussion that follows...