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Richard W. Painter

S. Walter Richey Professor of Corporate Law

Richard W. Painter

318 Mondale Hall
229–19th Ave. South
Minneapolis, MN 55455

612-626-9707

rpainter@umn.edu

Harvard University, B.A.
Yale Law School, J.D.

Professor Richard W. Painter received his B.A., summa cum laude, in history from Harvard University and his J.D. from Yale University, where he was an editor of the Yale Journal on Regulation. Following law school, he clerked for Judge John T. Noonan Jr., of the United States Court of Appeals for the Ninth Circuit and later practiced at Sullivan & Cromwell in New York City and Finn Dixon & Herling in Stamford, Connecticut.

He has served as a tenured member of the law faculty at the University of Oregon School of Law and the University of Illinois College of Law, where he was the Guy Raymond and Mildred Van Voorhis Jones Professor of Law from 2002 to 2005.

From February 2005 to July 2007, he was Associate Counsel to the President in the White House Counsel's office, serving as the chief ethics lawyer for the President, White House employees and senior nominees to Senate-confirmed positions in the Executive Branch. He is a member of the American Law Institute and is an advisor for the new ALI Principles of Government Ethics. He has also been active in the Professional Responsibility Section of the American Bar Association.

Professor Painter has also been active in law reform efforts aimed at deterring securities fraud and improving ethics of corporate managers and lawyers. A key provision of the Sarbanes-Oxley Act of 2002 requiring the SEC to issue rules of professional responsibility for securities lawyers was based on earlier proposals Professor Painter made in law review articles and to the ABA and the SEC. He has given dozens of lectures on the Sarbanes-Oxley Act to law schools, bar associations, and learned societies, such as the American Academy of Arts and Sciences. Professor Painter has on four separate occasions provided invited testimony before committees of the U.S. House of Representatives or the U.S. Senate on securities litigation and/or the role of attorneys in corporate governance.

His book, Getting the Government America Deserves: How Ethics Reform Can Make a Difference, was published by Oxford University Press in January 2009. He has written op-eds on government ethics for various publications including the New York Times, the Washington Post and the Los Angeles Times, and he has been interviewed several times on government ethics and corporate ethics by national news organizations, including appearances on Lawrence O'Donnell (MSNBC), Anderson Cooper 360 (CNN), CNN News, Fox News, National Public Radio All Things Considered, and Minnesota Public Radio News. In 2011, he testified before the U.S. House Government Oversight Committee on partisan political activity by government officials and reform of the Hatch Act. Professor Painter has also given expert testimony in cases involving securities transactions and the professional responsibility of lawyers. He testified as a defense witness in SEC. v. The Reserve Money Market Fund (SDNY, November 2012), a jury trial of an SEC enforcement action against the founders of the world's oldest money market fund that ended with a defense verdict on all of the fraud counts.

Professor Painter is the author of two casebooks: Securities Litigation and Enforcement (with Margaret Sachs and Donna Nagy; West 2003; Second Edition, 2007; Third Edition 2011) and Professional and Personal Responsibilities of the Lawyer (with Judge John T. Noonan Jr.; Foundation 1997; Second Edition, 2001; Third Edition 2011). He has written dozens of articles, book reviews, and essays, including a series of papers and a forthcoming book with Minnesota colleague Claire Hill on the personal responsibility of investment bankers.

During the 2014-15 academic year, Professor Painter will be on leave as a fellow at Harvard University's Safra Center for Ethics where he will work on a book on campaign finance reform.

For further information on Professor Painter, please see his curriculum vitae.


PUBLICATIONS

Books

Personal Responsibility of Investment Bankers [placeholder title] (University of Chicago Press, forthcoming 2014) (with Claire Hill)

Securities Litigation and Enforcement: Cases and Materials (Thomson/West, 1st ed., 2003; 2d ed., 2008, 3d ed., 2012) (Teacher's Manual, 2003, 2008 & 2012) (with Donna Nagy & Margaret Sachs)

Professional and Personal Responsibilities of the Lawyer (Foundation Press, 1st ed., 1997; 2d ed., 2001; 3d ed., 2011) (with John T. Noonan Jr.)

Getting the Government America Deserves: How Ethics Reform Can Make a Difference (Oxford University Press, 2009)

Book Chapters

Why Don't Investment Bankers Think and Talk About Religion?, in 2013 Henry Kaufman Forum on Religion and Business (David Sicilia, ed., forthcoming 2014)

Christian Kirchner's New Institutional Economics and Jurisdictional Competition in Regulation of Public Companies and Financial Services Firms, in Festschrift zu Ehren von Christian Kirchner: Recht im okonomischen Kontext (Mohr Siebeck, 2014)

Transaction Cost Engineers, Loophole Engineers or Gatekeepers: The Role of Business Lawyers After the Financial Meltdown, in Research Handbook on the Economics of Corporate Law (Claire A. Hill & Brett H. McDonnell, eds., Edward Elgar, 2012)

The Dubious History and Psychology of Clubs as Self-Regulatory Organizations, in Restoring Trust in America's Business 127 (Jay W. Lorsch, Leslie Berkowitz & Andy Zelleke, eds., MIT Press, 2005) (American Academy of Arts and Sciences Corporate Responsibility Project symposium)

Journal Articles

Plugging Leaks and Lowering Levees in the Federal Government: Practical Solutions for Securities Trading Based on Political Intelligence, 2014 Illinois Law Review (forthcoming fall 2014) (with Donna Nagy)

People Who Are Not Legal and Who Are Not Alive in the Eyes of the Law, 59 Villanova Law Review 667 (2014) (Symposium in Honor of Judge John T. Noonan, Jr.)

Numerical Half Truths, Human Lies, and Other Distortions of Truth, 47 Valparaiso University Law Review 479 (2013)

Sworn to Fun, Loyal to None: Time Inconsistent Preferences in Investment Banking, 1 Virginia Journal of Criminal Law 334 (2013)

Selective Disclosure by Federal Officials and the Case for an FGD (Fairer Government Disclosure) Regime, 2012 Wisconsin Law Review 1285 (2012) (with Donna Nagy)

"Extraordinary Circumstances": The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform, 46 University of Richmond Law Review 969 (2012) (with Michael Gerhardt)

Forum Competition and Choice of Law Competition in Securities Law After Morrison v. National Australia Bank, 97 Minnesota Law Review 132 (2012) (with Wulf A. Kaal)

Of the Conditional Fee as a Response to Lawyers, Bankers and Loopholes, 1 American University Business Law Review 42 (2011-2012) (with Claire Hill)

Compromised Fiduciaries: Conflicts of Interest in Government and Business, 95 Minnesota Law Review 1637 (2011) (with Claire Hill)

Pro Se Litigation in Times of Financial Hardship--A Legal Crisis and Its Solutions, 45 Family Law Quarterly 45 (2011)

The Aftermath of Morrison v. National Australia Bank and Elliott Associates v. Porsche, 8 European Company and Financial Law Review 77 (2011) (with Wulf A. Kaal)

The Dodd-Frank Extraterritorial Jurisdiction Provision: Was It Effective, Needed or Sufficient?, 1 Harvard Business Law Review 195 (2011)

When Courts and Congress Don't Say What They Mean: Initial Reactions to Morrison v. National Australia Bank and to the Extraterritorial Jurisdiction Provisions of the Dodd-Frank Act, 20 Minnesota Journal of International Law 1 (Winter 2011) (with Douglas Dunham & Ellen Quackenbos)

Berle's Vision Beyond Shareholder Interests: Why Investment Bankers Should Have (Some) Personal Liability, 33 Seattle University Law Review 1173-1199 (2010) (with Claire Hill)

Extraterritorial Application of US Securities Laws, 7 European Company Law 90 (2010) (with Wulf A. Kaal)

Initial Reflections on an Evolving Standard: Constraints on Risk Taking by Directors and Officers in Germany and the United States, 40 Seton Hall Law Review 1433 (2010) (with Wulf A. Kaal)

President Obama's Progress in Government Ethics, 26 Constitutional Commentary 195-213 (2010)

The Moral Responsibilities of Investment Bankers, 8 University of Saint Thomas Law Journal 5 (2010)

Bailouts: An Essay on Conflicts of Interest and Ethics When Government Pays the Tab, 41 McGeorge Law Review 131-160 (2009)

Ethics in the Age of Un-incorporation: A Return to Ambiguity of Pre-incorporation or an Opportunity to Contract for Clarity?, 2005 Illinois Law Review 49-64 (2005) (Symposium on Un-incorporation), reprinted in Private Company Law Reform: International and European Perspectives (Joseph A. McCahery, Levinus Timmerman & Erik P.M. Vermeulen, eds., Asser Press, 2010)

Free the Lawyers: A Modest Proposal to Allow Restrictions on Future Law Practice in Settlement Agreements, 18 Georgetown Journal of Legal Ethics 291-323 (2005) (with Stephen Gillers)

Regulatory Competition in EU Corporate Law after Inspire Art: Unbundling Delaware's Product for Europe, 2 European Company & Financial Law Review 159-206 (2005) (with Christian Kirchner & Wulf Kaal)

Convergence and Competition in Rules Governing Lawyers and Auditors, 29 Journal of Corporation Law 397-426 (2004) (Symposium on Evaluation and Response to Risk in Law and Accounting in the U.S. and E.U.)

Standing Up to Wall Street (and Congress), 101 Michigan Law Review 1512-1531 (2003) (reviewing Arthur Levitt, Take on the Street: What Wall Street and Corporate America Don't Want You to Know, What Can You Can Do to Fight Back (Pantheon Books, 2002)) (review essay)

Commentary on Brudney and Ferrell, 69 University of Chicago Law Review 1219-1229 (2002) (commenting on article by Victor Brudney and Allen Ferrell on corporate charity)

Takeover Defenses Under Delaware Law, the Proposed Thirteenth EU Directive and the New German Takeover Law: Comparison and Recommendations for Reform, 50 American Journal of Comparative Law 201-226 (2002) (with Christian Kirchner)

Afterword: Jurisdictional Competition as Federalism's Answer to the Multidisciplinary Practice Debate, 36 Wake Forest Law Review 185-191 (2001) (Symposium on Multidisciplinary Practice)

Contracting Around Conflicts in a Family Business: Louis Brandeis and the Warren Trust, 8 University of Chicago Law School Roundtable 353-379 (2001)

Rules Lawyers Play By, 76 New York University Law Review 665-749 (2001)

A European Modified Business Judgment Rule for Takeover Law, 2 European Business Organization Law Review 353-400 (2000) (with Christian Kirchner)

Advance Waiver of Conflicts, 13 Georgetown Journal of Legal Ethics 289-329 (2000) (Symposium on the Ethics of Business Lawyering)

Irrationality and Cognitive Bias at a Closing in Arthur Solmssen's The Comfort Letter, 69 Fordham Law Review 1111 (2000) (Annual Ethics Symposium), reprinted in 34 Securities Law Review 285-311 (2002)

Lawyers' Rules, Auditors' Rules and the Psychology of Concealment, 84 Minnesota Law Review 1399-1437 (2000) (Symposium on Multidisciplinary Practice)

Insider Trading and the Stock Market Thirty Years Later, 50 Case Western Reserve Law Review 305-311 (1999) (Symposium on the Legacy of Henry Manne) (response to essay by Professor Jon Macey)

Open Chambers?, 97 Michigan Law Review 1430-1471 (1999) (reviewing Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (Times Books/Random House, 1998)) (review essay)

Professional Responsibility Rules as Implied Contract Terms, 34 Georgia Law Review 953-971 (1999) (Symposium on Business Law)

Don't Ask, Just Tell: Insider Trading after United States v. O'Hagan, 84 Virginia Law Review 153-229 (1998) (with Kimberly Krawiec & Cynthia Williams)

Responding to a False Alarm: Federal Preemption of State Securities Fraud Causes of Action, 84 Cornell Law Review 1-108 (1998)

Second Opinions in Litigation, 84 Virginia Law Review 1411-1437 (1998) (Olin Foundation Symposium on Law and Economics of Lawyering) (with Michael Klausner & Geoffrey Miller)

Disclosure of Environmental Legal Proceedings Under the Securities Laws: A Potential Step Backward, 11 Journal of Environmental Law and Litigation 91-117 (1996) (Symposium on Business and the Environment)

Game Theoretic and Contractarian Paradigms in the Uneasy Relationship Between Regulators and Regulatory Lawyers, 65 Fordham Law Review 149-200 (1996) (AALS Professional Responsibility Section Symposium, AALS Annual Meeting, San Antonio, Texas (Jan. 1996)) (see Ian Ayres, Response to Painter, 65 Fordham Law Review 201-208 (1996))

Lawyer Disclosure of Corporate Fraud: Establishing a Firm Foundation, 50 SMU Law Review 101-157 (1996) (Symposium on Securities Regulation) (presented at the Meeting of the American Law and Economics Association, University of Chicago (May 1996)) (proposing at pages 261-263 legislative provisions resembling Section 307 of the Sarbanes-Oxley Act of 2002) (with Jennifer Duggan)

Contractarian and Cultural Perspectives on Value Creation by Business Lawyers, 74 Oregon Law Review 327-339 (1995) (comment on papers presented at Symposium on Business Lawyering and Value Creation for Clients (Nov. 1994))

Litigating on a Contingency: A Monopoly of Champions or a Market for Champerty?, 71 Chicago-Kent Law Review 625-697 (1995) (Symposium on Fee Shifting)

Toward A Market for Lawyer Disclosure Services: In Search of Optimal Whistleblowing Rules, 63 George Washington Law Review 221-296 (1995)

The Moral Interdependence of Corporate Lawyers and Their Clients, 67 Southern California Law Review 507-584 (1994), reprinted in 36 Corporate Practice Commentator 755-834 (1995)

Documents and Reports

Discipline of Law Firms (Report of the Committee on Professional Responsibility), 48 Record of the Association of the Bar of the City of New York 628-644 (1993), reprinted in Conference on Lawyer and Accountant Liability and Responsibility 5 (American Law Institute-American Bar Association Committee on Continuing Professional Education, 1993) (New York in 1996 became the first state in the United States to provide for discipline of law firms when the Appellate Division adopted rules essentially identical to several of the rules suggested in this Report) (with Karen Burrows)

The Attorney's Duties to Report the Misconduct of Other Attorneys and to Report Fraud on a Tribunal (Report of the Committee on Professional Responsibility) 47 The Record of the Association of the Bar of the City of New York 905-927 (1992) (with Sandra Nickel)

Editorials, Commentary & Letters

The NRA Protection Racket, New York Times, Dec. 19, 2012 (op-ed) (discussed in televised interviews with CNN Anderson Cooper, MSNBC Lawrence O'Donnell and others)

Invitation to a Dialogue: A Filibuster Alternative, New York Times, Feb. 29, 2012 and Mar. 4, 2012 (letter and reply to readers' responses in the Sunday Dialogue section of the op-ed page) (with Michael Gerhardt)

Give All Judicial Nominees a Vote, Star-Telgram, May 30, 2011 (op-ed) (urging an end to Senate filibusters of judicial nominees)

The Case for Goodwin Liu, Politico, May 18, 2011 (op-ed)

Marriage Amendment? Leave Marriage Well Enough Alone, Star Tribune, May 9, 2011 (op-ed) (opposing proposed amendment to the Minnesota Constitution)

The Separation of Politics and State, New York Times, June 14, 2010, at 23 (op-ed) (urging curtailment of White House political operations)

Tell Me No Lies: Don't Ask Don't Tell Institutionalizes Dishonesty in the Military, American Lawyer, June 1, 2010

Topic A: Politics as Usual, Washington Post, June 6, 2010 (op-ed) (discussing White House job offers to Senate candidates in Pennsylvania and Colorado)

Court Nominee Liu Follows the Law, Los Angeles Times, May 3, 2010 (op-ed supporting the President's nomination of Goodwin Liu to the Ninth Circuit)

Mutual Funds: Fair Disclosure, Fair Regulation, New York Law Journal, Dec. 18, 2003, at 2 (op-ed) (urging sensible regulation of mutual funds)

Lawyer-Client Confidentiality: Changing Model Rule 1.6 is Long Overdue, California Bar Journal, Aug. 2003, at 1

Congress Tells Corporate Lawyers to Tell Directors About Fraud, The Wall Street Lawyer, Aug. 2002, at 6 (discussing Section 307 of the Sarbanes-Oxley Act of 2002)

Our Security Markets Should Be Secure, Washington Post, Sept. 25, 2001, at A23 (proposing alternative trading floors and other measures to protect stock exchanges from terrorist attack)

Don't Disadvantage Europe: The European Parliament Made the Right Call in Rejecting the Strict Neutrality Rule, Wall Street Journal Europe, July 19, 2001, at 9 (op-ed) (criticizing proposed EU corporate takeover directive that was rejected by the EU Parliament)

A Law Clerk Betrays the Supreme Court, Wall Street Journal, Apr. 13, 1998, at A23 (op-ed) (critical of former Supreme Court clerk's use of confidential materials to write a book on the Court)

If This Is Mail Fraud, Then Most Lawyers Are Guilty, Wall Street Journal, May 4, 1994, at A15 (op-ed) (cited in the Wall Street Journal's lead editorial of June 23, 1994) (critical of mail fraud conviction in United States v. Armand D'Amato (E.D.N.Y 1993), rev'd 39 F.3d 1249 (2d Cir. 1994))

Other Publications

DOJ's Ex-Detainee Lawyers: The Ethics Issue, 11:3 Engage: The Journal of the Federalist Society's Practice Groups 104 (Dec. 2010) (with Edwin D. Williamson)

Government Ethics in President Obama's First Year: A Preliminary Assessment, 10:3 Engage: The Journal of the Federalist Society's Practice Groups 104 (Nov. 2009)

Ethics and Corruption in Business and Government: Lessons from the South Sea Bubble and the Bank of the United States (University of Chicago Law School, 2006) (2006 Maurice and Muriel Fulton Lecture in Legal History)

The Impact of Recent Developments in Securities Law and Ethics Rules on Tax Lawyers and Tax Directors, 83 Taxes: The Tax Magazine 81 (Mar. 2005) (University of Chicago Tax Conference)

Roundtable Discussion: Corporate Governance, 77 Chicago-Kent Law Review 235 (2001) (participant) (Theory Informs Business Practice Symposium) (with William J. Carney, Jack B. Jacobs, Robert Pritzker & Robert H. Sitkoff)

New Insider Trading Rules Attempt to Clarify SEC's Approach, 15 Corporate Counsel Weekly 42 (2000) (with Kimberly Krawiec)

The New American Rule: A First Amendment to the Client's Bill of Rights, 2000 Civil Justice Report 1 (2000)

SEC Discipline of Lawyers: In Search of a Firm Foundation, 1997 Professional Lawyer Symposium Issue 97-105 (1997) (with Jennifer Duggan)

Brief of Amici Curiae Law Professors and Counsel in Support of Respondent, U.S. v. James Herman O'Hagan, 117 S. Ct. 2199 (1997) (with Kimberly Krawiec & Cynthia Williams)

Testimony

Is the Obama Administration Conducting a Serious Investigation of IRS Targeting?: Hearing Before the Subcommittee on Economic Growth, Job Creation and Regulatory Affairs of the House Committee on Oversight and Government Reform, 113th Cong., 2nd Sess. (Feb. 26, 2014)

Examining the Settlement Practices of U.S. Financial Regulators: Hearing Before the House Committee on Financial Services, 112th Cong., 2nd Sess. (May 17, 2012)

The Hatch Act: The Challenges of Separating Politics from Policy: Hearing Before the House Committee on Government Oversight and Reform, 112th Cong., 1st Sess. (June 21, 2011)

The Role of Attorneys in Corporate Governance: Hearing Before the Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises of the House Committee on Finance, 108th Cong., 2nd Sess. (Feb. 4, 2004)

Proposal to Amend the Model Rules to Provide for Advance Consent to Conflicts: Hearing Before the American Bar Association, Center for Professional Responsibility, Ethics 2000 Commission (June 4, 1999), reprinted in 10 Professional Lawyer 26 (Winter 1999)

Proposal to Amend Model Rule 1.13: Organization as Client: Hearing Before the American Bar Association, Center for Professional Responsibility, Ethics 2000 Commission (May 29, 1998), reprinted in 9 Professional Lawyer 10 (Spring 1998) (rejected by the ABA but later incorporated in substantial part into Section 307 of the Sarbanes-Oxley Act of 2002)

Securities Litigation Uniform Standards Act of 1997: Hearing Before the Subcommittee on Finance and Hazardous Materials of the House Committee on Commerce, 105th Cong., 2nd Sess. (May 19, 1998)

Securities Litigation Uniform Standards Act of 1997: S. 1260: Hearings Before the Subcommittee on Securities of the Senate Committee on Banking, Housing, and Urban Affairs, 105th Cong., 2nd Sess. (Feb. 23, 1998)

COURSES

BA/Corporations
Federal Securities Regulations
Professional Responsibility of the Business Lawyer
Professional Responsibility of the Government Lawyer
Securities Litigation

Seminars

Ethics of Government Leaders