Unintended Consequences of Scholarship
posted by Lawrence Cunningham
Now, Gordon Gee, president of Ohio State, had just announced his retirement. This followed several bad jokes he’d made that had become public—about Notre Dame, Catholic priests and relative literacy across the Southeastern Conference. Besides encouraging his retirement, I understand that the board of trustees have now banned attempts at public joke telling on the OSU campus, including at conferences. Which was a relief, because I didn’t have any good jokes to start with, I told the audience.
After that obligatory bit of humor, it was on to remarks based on one of my recent books, The AIG Story, which I wrote along with the company’s long-time chairman Hank Greenberg. One of the book’s themes that I wanted to highlight is the dangers of a one-size-fits-all approach to corporate governance. For the assembled audience of young business law scholars, moreover, I wanted to intersect that with some thoughts on scholarly life, my notes on which follow.
It is wonderful to be able to write law review articles that other scholars respect as well as books for a general audience, I said. They are connected. Both require networks. I felt little need to tell those assembled about the value of participating in conferences; they were there. It takes work and is worthwhile.
Frank Partnoy reminds me of my advice to him when he entered teaching: hit on all cylinders. Teach well, help your students, write articles, books, op-eds, essays, white papers; give workshops and lectures; testify and run host conferences; meet the press; today I extol blogging as well—as I do here at Concurring Opinions.
That brought me to the book, The AIG Story. The opportunity to write it came to me from a former student. He works in Greenberg’s inner circle. They were hunting for a co-author. My student remembered me, a vital link. Another was an insurance angle: I had worked with Warren Buffett, hosting a conference about his letters at Cardozo Law School back 1996 in my fourth year of teaching. Also on substance, besides the Buffett work, which I published as a book, I’d written articles and books in relevant areas: accounting, governance, insurance, financial regulation.
Moving full circle, out of the book I’ve generated 2 scholarly products so far. One is the final chapter, about AIG in 2008, which I’ve posted on SSRN. Second is a fresh scholarly piece, forthcoming in the Florida Law Review, extending points I highlighted in the talk: Corporate Governance in Deferred Prosecution Agreements (also on SSRN).
So the scholarly enterprise is vast and iterative—it begins in the classroom, includes articles that lead to books, books that lead back to articles and all of that back to class. All the while, moreover, this scholarship matters. In addition to having intrinsic value, it has influence. That is usually wonderful, but ideas can be misused or applied in ways we neither intend nor like.
Popular recent examples include laments of tech pioneers in Silicon Valley who deplore their innovations being harnessed for government surveillance programs; or consider Adam Liptak’s recent piece in the New York Times about how the law professors who founded the Innocence Project, my former Cardozo colleagues—rue the Supreme Court’s use of their work recently when validating warrantless extraction of DNA samples. (Maryland v. King.) The same problem of unintended consequences can afflict business law scholarship.
That’s where the theme of The AIG Story I discussed intersects with my reflections on scholarship. The theme is the danger of a one-size-fits-all approach to corporate governance, which has become a feature of corporate America in the past 25 years, an accidental byproduct of some scholarly discourse.
After highlighting what I found from studying AIG, I reiterated that it teaches that one size does not fit all and the costs of ill-suited devices can be large. For us as scholars, I added, be aware of the problem of unintended consequences. That’s all the more reason to continue the advice I gave Prof. Partnoy years ago: full engagement with energetic teaching, writing of all kinds, being plugged in.