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88 Tul. L. Rev. 651 (2013-2014)

handle is hein.journals/tulr88 and id is 699 raw text is: Why Don't You Do Right? Corporate Fiduciary Law and the Self-Critical Analysis Privilege Kathryn W Munson* The fImancial cnsis of2008 has led to widespmad recognition that further incentives are needed to encourage meaningful corporate self-study and allow corporate officers and directors to fulfill their fiduciary obligations without nsang future liabilty 7his Comment will analyze the currnt incentive structume in corporate fiduciary law and the law ofprivilege to support voluntary self-critical analysis and explore a statutory solution to promote more thorough corporate sef-study and internal investgations. I. INTRODUCTION .............................................651 II. SELF-CRITICAL ANALYSIS AS A COMPONENT OF FIDUCIARY DUTY......................... ....................653 A. Duty of Care ....................................... 654 B. Duty ofLoyalty. ...................... .....655 C Business RiskDoctine.......... ................ 656 III. SELF-CRITICAL ANALYSIS AND THE LAW OF PRIVILEGE .............657 A. Attomey-Clienthivlege.....................662 B. Work-Product Doctine. ............... ........ 662 C Subsequent Remedial Measures.......... ............ 664 IV THE SELF-CRITICAL ANALYSIS PRIVILEGE .................665 V WORKING TOWARD A STATUTORY SOLUTION ..................... 667 A. An Opt-in Statutory Structure .................668 B. Supervision by an Officer ofthe Court..... ............670 VI. CONCLUSION: SELF-CRITICAL ANALYSIS WILL BE ENHANCED BY EXTENDING DELBETATIVE PROTECTION...........671 APPENDIX A-MODEL STATUTE ANNOTATED ..................673 I. INTRODUCTION The United States Department of Justice brought suit against Standard & Poor's (S&P) on February 4, 2013, for perpetuating what the government claims was a fraudulent ratings system, based on an * C 2014 Kathryn W Munson. J.D. candidate 2014, Tulane University Law School; M.A. 2006, University of South Florida; B.A. 2004, Louisiana State University. I owe special thanks to Professor Claire Moore Dickerson for her inspiring teaching and invaluable comments and suggestions. 651

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