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33 Yale J. on Reg. 109 (2016)
Modern-Day Monitorships

handle is hein.journals/yjor33 and id is 111 raw text is: Modern-Day Monitorships Veronica Roott When a sexual abuse scandal rocked Penn State, when Apple was found to have engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a Modern-Day Monitorship. Modern-day monitorships are utilized in an array of contexts to assist in widely varying re- mediation efforts. This is because they provide outsiders with a unique source of information about the efficacy of the tarnished organization 's efforts to resolve misconduct. Yet, despite their use in high profile and serious matters of organi- zational wrongdoing, they are not an outgrowth of careful study and deliberate planning. Instead, modern-day monitorships have been employed in an ad-hoc and reactionary manner, which has resulted in repeated instances of controversy and calls for reform. Underlying these calls for reform has been an implicit as- sumption that broad-based rules can effectively regulate all monitorships. Yet, when tested, this assumption is found lacking. This Article traces the rise of the modern-day monitorship and, for the first time, analyzes the use of monitorships in five different contexts. The analysis demonstrates that modern- day monitorships have experienced a rapid evolution with important conse- quences. First, as the Apple monitorship demonstrates, this evolution has changed the manner in which courts and lawyers conceive of the appropriate boundaries and norms for court-ordered monitorships. Second, as the Penn State scandal reveals, private organizations are co-opting the use of monitorships, which may transform the nature of monitorships from a quasi-governmental en- forcement mechanism to a privatized reputation remediation tool. Third, moni- torships fall into different categories based on the type of remediation effort the monitorship is meant to achieve. Because these different categories necessitate different monitorship structures to achieve the goals of each monitorship, at- tempts to adopt universal rules governing monitorships may be misguided In short, differences matter when evaluating monitorships. t Associate Professor of Law, Notre Dame Law School. Many thanks to Miriam Baer, Lisa Bernstein, Kevin Davis, Deborah DeMott, Lisa Fairfax, Barbara J. Fick, Gina-Gail S. Fletcher, Bruce Huber, Daniel Kelly, Patricia O'Hara, Jay Tidmarsh, Julian Velasco and to participants of the Duke Uni- versity School of Law Culp Colloquium, the Notre Dame Junior Faculty Workshop, the Corporate Com- pliance After the Crisis panel at the 2014 SEALS conference, the University of Chicago Legal Scholarship Workshop, and the University of Illinois College of Law Faculty Workshop for helpful comments and conversations. Thanks to Veronica Meffe, Marissa Wahl, and Quinn Kane for invaluable research assis- tance.

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