Comment Letter: The NYSE and the End of the Structural Separation between Regulatory and Commercial Interests of the Exchange

The NYSE transformed into a for profit entity in 2006. As part of the approval process, the NYSE agreed to structurally separate the regulatory function from the business function. In doing so, the NYSE created NYSE Regulation, a non-profit with an independent board, to handle most regulatory matters. During the comment period, a spirited debate arose over the ability of a for profit company to carry out a regulatory mission. Some suggested that the regulatory function was incompatible with a "for profit" motive and that NYSE Regulation should be spun off. Others accepted the proposed structure but called for additional changes designed to reduce the possible influence of the public holding company over the regulatory function. In the end, the SEC approved the structure but with a number of prophylactic safeguards including the requirement that NYSE Regulation have a board consisting of all independent directors (save the CEO) and that directors from the for profit holding company could not make up a majority of the board. More recently, however, the NYSE has proposed to end the structural separation of the two functions and instead put in place a functional separation. The proposal would result in the termination of the delegation agreement between the Exchange and NYSE Regulation and the creation of both a Regulatory Oversight Committee of the Board of Directors of the Exchange and the creation of a Chief Regulatory Officer. This letter examines the history of the separation of the two functions and critiques the NYSE's proposal.

In-House Risk

Over the last thirty years or so, as the number of in-house counsel rose and their role increased in scope and prominence, increased attention has been given the various challenges these lawyers face under the ABA Model Rules of Professional Conduct, from figuring out who is the client the in-house lawyer represents, to navigating conflicts of interest, maintaining independence, and engaging in a multijurisdictional practice of law. Less attention, to date, has been given to business risk assessment, perhaps in part because that function appears to be part of in-house counsel’s role as a business person rather than as a lawyer. Overlooking the role of in-house counsel in assessing risk, however, is a risky proposition, because risk assessment constitutes for some in-house counsel a significant aspect of their role, a role that in turn informs and shapes how in-house counsel perform other more overtly legal tasks. For example, wearing her hat as General Counsel, a lawyer for the entity-client may opine and explain issues of compliance with the law. Wearing her hat as the Chief Legal Officer, however, the same lawyer may now be called upon as a member of business management to participate in the decision whether to comply with the law. After outlining some of the traditional challenges faced by in-house counsel under the Rules, this short essay explores risk assessment by in-house counsel and its impact on their role and function under the Rules. It argues that the key to in-house lawyers’ successful navigation of multiple roles, and, in particular, to their effective assessment of business risk is keen awareness of the various hats they are called upon to wear. Navigating these various roles may not be easy for lawyers, whose training and habits of mind often teach them to zoom in on legal risks to the exclusion of business risks. Indeed, law schools continue to teach law students “to think like a lawyer” and law firms, the historical breeding grounds for in-house counsel positions, in a world of increased specialization master the narrower contemplation of legal questions. Yet the present and future of in-house counsel practice demand of its practitioners the careful and gradual coming to terms, buildup and mastery of business risk analysis skills, alongside the cultivation of traditional legal risk analysis tools.

Women and Performance in Corporate America

Women and Performance in Corporate America The glass ceiling has been shattered. Women like Indra Nooyi, the CEO of PepsiCo.; Angela Braly, the CEO of Wellpoint; and Patricia Woertz, the CEO of Archer Daniels Midland, are proof that women can achieve top leadership positions in corporate America. However, the scarcity of female leaders occupying the top ranks of corporate America, and the significant wage gap between men and women, suggest that there are significant complications along the path toward success for women in the corporate world.The data show that a disproportionately small number of women are making it to top leadership positions in corporate America. According to the US Department of Labor, in 2007 women accounted for 46% of the total work force, and 51 % of all workers in management, professional, and related occupations. Women outnumbered men in occupations including financial managers, human resource managers, education administrators, medical and health service managers, accountants and auditors, budget analysts, and property, real estate, and social and community association managers (US Department of Labor, 2007). However, women hold only 15.2% of board director positions, 15.7% of corporate officer positions, and 6.2% of top earner positions (Catalyst, 2009b). Additionally, according to a 2008 Corporate Library survey, only 2.6% of Fortune 500 companies currently have female CEOs (as cited in Jones, 2009).The data also show that women earn less than men in the work force. The US Department of Labor found that women working full time in 2007 made only 80% of the salaries of men (US Department of Labor, 2008). Studies designed to control for factors other than gender have not been able to account for the wage gap between men and women (Eagly & Carli, 2007, US Government Accountability Office, 2003). Even among CEO's of fortune 500 companies, female CEO's make only 85% of the salaries of male CEO's (Jones, 2009).

An Analysis of U.S. Air Force Policy and Installation CO2 Emissions to Determine Best Practices for the Implementation of Executive Order 13514

United States Air Force (USAF) energy policy is a measured but aggressive response to federal energy policy guidance. Previous USAF efforts, like those of the federal government, focused primarily on energy intensity reduction, cost, and BTU savings, and in certain cases have resulted in facility greenhouse gas (GHG) emission reductions. The USAF now faces the challenge of integrating GHG reduction goals and inventory requirements set forth in Executive Order 13514. Using USAF reported energy consumption data, facility GHG emission estimates have been synthesized to identify trends and elucidate existing energy best practices to be applied as part of overarching USAF GHG mitigation efforts and to highlight areas of possible concern for the integration of EO 13514 into operational USAF policy.