Hillary Sale

Sullivan & Cromwell Visiting Professor of Law

Spring 2017

Biography

Professor Hillary A. Sale is the Sullivan & Cromwell Visiting Professor and the Walter D. Coles Professor of Law and Professor of Management at Washington University in St. Louis, where she teaches both at the Law School and the Olin School of Management, including courses in Leadership, Women’s Leadership, Corporate Governance, and Securities Regulation.

She is a member of the FINRA Board of Governors, where she serves on the Nominating and Governance and Regulatory Policy Committees. She is also an expert on and frequent speaker to industry groups and academic audiences about leadership and corporate governance and was selected by the St. Louis Business Journal as a "2014 Most Influential Business Women." Professor Sale is also a member of the Executive Committee and Advisory Board of DirectWomen, a nonprofit with the mission of increasing the presence of women on public company boards. She is Chair of the DirectWomen Board Institute and works in industry training executives on leadership, governance, and risk management.

Professor Sale is a leading scholar in the areas of corporate governance and the role of corporate and securities law in shaping board decision-making and strategies and has authored many articles, including several that have won awards. Professor Sale is co-author (with John C. Coffee, Jr. and M. Todd Henderson) of the book Securities Regulation and is a member of the Committee on Corporate Laws of the ABA, where she co-chaired the committee that produced the Sixth Edition of the Corporate Director’s Guidebook. In 2016, Professor Sale was elected a Fellow of the American College of Governance Counsel.

Before entering academia, Sale was a law clerk to The Honorable Richard S. Arnold, Chief Judge of the United States Court of Appeals for the Eighth Circuit, practiced with the law firm of WilmerHale, LLP, and was Chief of Staff and Director of Operations for Evelyn F. Murphy, the Lieutenant Governor of Massachusetts. She graduated magna cum laude from Harvard Law School in 1993 and holds a master’s degree in Economics from Boston University, where she also completed her B.A., summa cum laude in 1983.

Areas of Interest

Hillary Sale & Donald C. Langevoort, 'We Believe': Omnicare, Legal Risk Disclosure and Corporate Governance, 66 Duke L.J. 763 (2016).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Fiduciary Law
,
Risk Regulation
,
Corporate Governance
,
Fiduciaries
,
Securities Law & Regulation
Type: Article
Abstract
The Supreme Court’s decision in Omnicare Inc. v. Laborers District Council Construction Industry Pension Fund presents new challenges for boards of directors. The opinion speaks to whether and when an issuer’s statement of belief can be false or misleading other than by proof that the issuer’s genuine opinion was different from what it stated. Statements of opinion imply something about how the belief was formed, and that process implicates the role of directors as fiduciaries. This Article uses Omnicare as a starting point for exploring and developing the interplay between disclosure, discourse, and fiduciary duties. Using the lens of corporate-discourse theory, this Article explores how the judicial process extracts (or should extract) meaning from ambiguous, often strategically crafted words communicated to vastly complicated financial markets. Questions such as what it means for a corporate entity—a legal fiction incapable of thought—to express a belief, who the “we” is in “we believe our practices are legally compliant,” and what it means to believe, all help to frame the conversation about the role of directors in disciplining the corporate-disclosure process. Federal securities law cases that raise questions about disclosure related to legal compliance and derivative lawsuits challenging board oversight are common after a big corporate penalty for violations of federal or state law. Regulators are also pushing boards of directors to participate more in legal and disclosure quality control. To the extent that Omnicare was favorable to plaintiffs in allowing some suits to proceed notwithstanding belief or opinion qualifiers, this Article posits that boards need to exercise greater responsibility for disclosures, particularly with respect to legal compliance. In this manner, the securities laws perform in an information-forcing-substance manner, creating a disclosure regime that is backed by due diligence and fiduciary performance. Finally, this Article argues that the Omnicare litigation—and control over discourse about legal risk—belongs in the broader context of board fiduciary responsibility for enterprise risk management generally, and legal compliance in particular.
Hillary A. Sale, The New ‘Public’ Corporation, 74 Law & Comtemp. Probs. 137 (2011).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Financial Reform
,
Corporate Governance
,
Corporate Law
Type: Article
Abstract
The United States has experienced a financial crisis, a market crash, and a shift in the perception of America’s place in the global economy. New financial reform legislation will increase the role of the government in the socalled private-law world of corporations and will press further on our conception of what the rights and responsibilities of “public corporations” actually are and will push us to reconceive the definitions of public corporations and corporate governance. This article explores that issue - the definition of public corporation and its impact on corporate governance. Rather than accepting the definition of public corporations as those that are traded in markets, this article argues that, when viewed in light of the ways in which society’s views of corporations have changed, that definition is impoverished. Public corporations are not just creatures of Wall Street. They are creatures of Main Street, the media, bloggers, Congress, and the government. Indeed, the article argues, it is the failure of the fiduciaries of public corporations to understand their “publicness” that accounts for many of the recent scandals.
John C. Coffee, Jr. & Hillary A. Sale, Redesigning the SEC: Does the Treasury Have a Better Idea?, 95 Va. L. Rev. 707 (2009).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Financial Markets & Institutions
,
Banking
,
Securities Law & Regulation
Type: Article
Abstract
The 2008 financial crisis has necessarily raised the question of regulatory redesign. Were regulatory failures responsible to any significant degree for the insolvency of the major investment banks? Even prior to the crisis's cresting, the Treasury Department issued a Blueprint in early 2008 concluding that the regulation of financial institutions in the U.S. was overly fragmented. This paper analyses both the Treasury Department's proposals and the role of the SEC in the rapid increase of leverage at major investment banks in the 2005 to 2008 era that led to their insolvency. Finding the SEC to be more competent at consumer protection and antifraud enforcement than at prudential financial regulation, this paper supports a twin peaks model for financial regulation in preference to either a universal regulator or the U.S.'s current system of functional regulation. It disagrees, however, with the Treasury's recommendation of greater reliance on self-regulation and principles over rules, finding that deference to self-regulation was at the heart of the SEC's recent failure in the Consolidated Supervised Entity Program and provides a paradigm of when self-regulation will fail. An alternative (and more modest) proposal is also made to Treasury's proposed preemption of state securities regulation. This article will appear in the 75th Anniversary SEC Symposium in the Virginia Law Review.

Education History

Current Courses

Course Catalog View