The BU Law community celebrates Robert B. Kent Professor Tamar Frankel’s work to foster trust and honesty in corporate law.
On April 2, 2018 the BU Law community honored Robert B. Kent Professor of Law Tamar Frankel with a symposium celebrating her distinguished career and the most recent of her many publications, The Law of Institutional Self-Regulations (Compliance).
Dean Maureen A. O’Rourke and the Honorable Paul J. Liacos Professor of Law James E. Fleming welcomed participants and guests, including Professor Frankel’s family. They took care to highlight her remarkable achievements, beginning in Israel when she became one of the first to receive a license to practice law in the new Israeli state. One of the only native Hebrew speakers, she helped shape the rules and vocabulary of the new country’s legislation before moving to the United States. She joined the faculty at Boston University School of Law in 1968 as the first female professor in the school’s history. She is, as Professor Fleming noted, “a force of nature and inspiring example of scholarship for the common good.”
The first commentator was Professor and Law Alumni Scholar David J. Seipp, who described what he called his “usual experience” with Professor Frankel: “Tamar shows me a new way of thinking about things, she asks questions that have never occurred to me, I go away thinking someone should write a book about that. Tamar walks away thinking ‘I need to write a book about that,’ and six months later, Tamar has written that book.” Her most recent book, according to Seipp, is about how to “educate in the subtle art of getting large financial institutions to behave themselves.”
The crux of the book, Seipp noted, hinges upon Lord Fletcher Moulton’s observation from over 100 years ago that positive law tells us what we must do, free choice tells us to do whatever we like, but the ideal middle is a domain of “obligations to the unenforceable.” Frankel argues that to avoid disaster, we need to expand this “obligations to the unenforceable” domain and create a habit and culture of obedience and compliance among financial institutions.
Professor David Webber remarked that, in her accomplished career of great endurance, “Tamar has singlehandedly preserved and nurtured a humanities-like tradition in corporate law” in a time when the field is “increasingly technocratic.” The Law of Institutional Self-Regulations (Compliance), like much of Frankel’s scholarship, is concerned with intangible, unmeasurable variables such as trust and honesty. Webber reflected that Frankel’s work has constantly kept these issues at the forefront of scholarship and has shown their real-world and tangible effects on institutions. With her most recent book, Frankel shows that building a culture on intangibles such as honesty, trust, and compliance is an ideal that institutions should strive for.
Webber ended his comments by recalling an anecdote from a lunch with Frankel at which he asked her how she “remains inspired despite inevitable criticisms and disappointments.” He recalled: “She said, ‘it’s all about when I look out and see something that sparkles and catches my attention and excites me. I keep that part alive, that natural curiosity.’” Frankel, he said, has not only sustained this flame of curiosity and exploration in herself, but has lit it in many others both inside and outside of BU Law.
Professor and Nancy Barton Scholar Kathryn Zeiler took a moment to acknowledge Professor Frankel’s pioneering role at BU Law. “Speaking for every woman on our faculty, past, present, and future: Thank you for being our trailblazer,” she said. “You achieved many firsts, and those achievements have made it possible for women to follow in your footsteps, and we are grateful.”
In considering Frankel’s latest book, Zeiler commented on the interdisciplinary nature of compliance as a field of study, observing that Frankel drew economics, psychology, sociology, business, and ethics into her discussion. She also reflected on the important ideas Frankel raised about the role of lawyers in educating clients in the real world. A lawyer’s obligation is to educate about not only the rules and punishments of the law, but also the intent of the law. In doing so, lawyers can promote a culture of compliance. Such discussion prompted Zeiler to raise questions about what a professor’s role should be in teaching and fostering within students a healthy and ethical culture when lawyers are so often scrambling to find loopholes and ways around the law.
Professor Frankel responded to the commentators by emphasizing the difference between law and culture. Through her extensive experience, including “teaching and changing” her approach to compliance, she learned that law and culture are separate but intertwined systems. The law regulates all institutions in the same way, but how institutions comply will be uniquely suited to each institution’s culture.
As an illustration, Frankel recalled her role in designing the unique structure of an equally unique institution: ICANN, the Internet Corporation for Names and Numbers. In the beginning, Frankel recalled that various groups competed and fought against one another to have their views accepted over all others. She recognized the destructive nature of this type of debate and—acting as mediator—demanded they only present what they agreed upon. In doing so, she fostered a culture focused on producing solutions rather than winning arguments. She emphasized that satisfaction needn’t only come from one side winning and another losing; the goal should be a culture in which each group is satisfied with what it gets and also with what another gets. A successful and productive culture should resemble good cooking, she suggested. Satisfaction comes from both consuming a savory dish and knowing that others enjoy it, too.
Reported by Caroline Lambert (’19)
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