Independent monitorships have become a familiar feature of modern corporate enforcement. Once largely confined to court-appointed special masters in public law litigation, monitors are now routinely imposed in corporate settlements with the Department of Justice, the Securities and Exchange Commission, and other government enforcement authorities. Their purpose is straightforward in theory: When misconduct is widespread or systemic, an independent outsider is appointed to oversee remediation efforts and report back to government authorities. In practice, however, monitorships raise persistent questions about effectiveness, legitimacy, and their ability to generate lasting change within organizations.
In a forthcoming book chapter, I examine how modern monitorships operate, why governmental actors rely on them, and what their growing use reveals about the relationship between compliance, corporate culture, and public trust. Rather than treating monitorships as a purely technical compliance tool, the chapter situates them within a broader effort to reform organizational behavior after serious wrongdoing.
A defining feature of monitorships is that they are imposed precisely when government authorities (and the public) lack confidence that a company can remediate misconduct on its own. Monitors are independent, private outsiders appointed after wrongdoing has been identified. Their task is not to prevent misconduct in the abstract, but to oversee remediation – evaluating internal controls, compliance programs, and governance structures – and to provide credible information to courts or enforcement agencies about whether reform is actually occurring. In this sense, monitors function as external remediators, bridging the gap between public enforcement and private governance.
Much of the debate surrounding monitorships has focused on their costs, their opaque reporting practices, and the risk of cronyism in monitor selection. These concerns are well-founded. Monitorships can be extraordinarily expensive, their reports are often shielded from public view, and the profession remains largely unregulated. Yet focusing exclusively on these critiques risks obscuring a deeper question: What, exactly, are monitorships supposed to accomplish?
One increasingly prominent answer is cultural change. Many of the most damaging corporate scandals of the past two decades were not simply the result of isolated bad actors. They were rooted in organizational cultures that normalized rule-breaking, marginalized compliance functions, or prioritized performance at any cost. If misconduct is cultural, remediation must be more than procedural.
Some monitorships have explicitly embraced this challenge. The Volkswagen “Dieselgate” monitorship is a leading example. There, the monitor’s mandate extended beyond technical compliance to address the corporate culture that enabled years of deception. The monitorship focused on governance reform, internal reporting structures, leadership accountability, and the company’s approach to transparency. Yet, the limited empirical research indicates that while monitorships may reduce violations while the monitor is in place, those effects often fade once the monitorship ends. This raises uncomfortable questions about whether monitorships generate durable behavioral change or merely temporary compliance improvements.
The design of monitorships matters enormously. Who is selected as monitor, what expertise they bring, and how their mandate is structured all appear to shape the likelihood of success. Yet monitor selection remains heavily skewed toward lawyers and former prosecutors, even in cases where the underlying failures involve engineering, finance, or organizational behavior. Legal expertise is often essential, but it may be not be sufficient on its own to diagnose and remediate cultural dysfunction. Effective monitorships may require interdisciplinary teams that combine legal knowledge with expertise in organizational culture, risk management, and industry-specific operations.
Independent monitorships are neither a panacea nor a mere compliance formality. They are extraordinary interventions, deployed when trust in a firm’s internal governance has broken down. Their future effectiveness will depend on whether regulators, courts, and scholars are willing to move beyond ad hoc experimentation toward clearer standards, expertise-driven selection, and meaningful measures of behavioral change. Without such reforms, monitorships risk becoming costly symbols of accountability rather than sustainable engines of organizational reform.
Veronica Root Martinez is the Simpson Thacher & Bartlett Distinguished Professor of Law at Duke University School of Law. This post is based on her chapter, “Independent Monitorships,” forthcoming in the Cambridge Handbook on Organizational Culture and Misconduct and available here.