There has been real frustration with the SEC and other government agencies for not holding individuals responsible for the excessive risk-taking that was a principal cause of the 2008 to 2009 global financial crisis (Financial Crisis) and its associated banking failures. Enforcement has focused instead on the financial firms themselves. But being managed by individuals, firms themselves are the second-best targets of deterrence. Targeting managers in their personal capacity is thus widely viewed as a greater, and perhaps a more optimal, deterrent than firm-level liability. Better deterrence is critical because insufficient deterrence could sow the seeds-as may already be occurring-for future systemic meltdowns. Targeting managers in their personal capacity can also help to increase accountability and fairness. Moreover, firm-level liability can impose significant externalities on third parties. The prosecution of Arthur Andersen, for example, caused tens of thousands of employees to lose their jobs. Firm-level liability can also hurt innocent stockholders and creditors, who will suffer a loss in the value of their securities.
Schwarcz, Steven L.
"Keynote Reflections: The Public Governance Duty,"
Georgia Law Review: Vol. 50:
1, Article 3.
Available at: https://digitalcommons.law.uga.edu/glr/vol50/iss1/3