Constitutive Compliance

I come to the topic of this roundtable as an outsider. I teach bankruptcy, contracts, and commercial law, so my observations about antitrust and compliance are trans-substantive, brief, and offered at the highest level of abstraction. I offer three broad insights about the role of compliance, generally within a firm: (1) compliance should be viewed as a core topic in corporate governance; (2) compliance should focus on fundamental behavioral norms rather than complex rules; and (3) compliance should be thought of as constitutive rather than constraining. Insofar as these insights apply to antitrust, there are considerable differences among types of violations as to which level of the firm needs to be the focus of the compliance obligation: directors, officers, and product line employees.