Corporate law scholar Prof. Stephen Bainbridge writes about the titular topic, as a supplement to a recent post on these pages, in which the good professor provides additional citations to cases and learned commentary on this issue, in the context of creeping federalization of corporate law.
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Corporate Law and Woke CEOs
By Francis Pileggi on
Posted in Commentary
One of the country’s foremost corporate law scholars, Prof. Stephen Bainbridge, who readers of Delaware corporate law decisions and readers of these pages will recognize as having earned a place in the pantheon of corporate law luminaries, has commented on the titular topic, based on a recent Wall Street Journal article that discusses a backlash by conservatives against CEOs who also have a “side hustle” as “social justice warriors”. The good professor cites to a related law review article he wrote (among the voluminous scholarship he has published), and also muses about:
… why so few conservative activists have seized upon the SEC shareholder proposal rule (Rule 14a-8) to put proposals on company proxy statements supporting conservative causes or opposing woke policies by corporations. Especially when there’s a slightly bored corporate law professor just waiting to advise them.
Former US Attorney General argues: Del. is at risk of losing its corporate law prominence due to ESG
By Francis Pileggi on
Posted in Commentary
Former U.S. Attorney General William Barr wrote an article in today’s Wall Street Journal arguing: Delaware is at risk of losing its prominence in corporate law because of what the former U.S. Attorney General describes as the increasing infiltration into Delaware corporate law of ESG priorities, for example via Caremark claims.
Barr describes ESG as a means to inject left-leaning policy preferences into the law. It’s not a law review article, although he refers in passing to several developments that those familiar with Delaware corporate law will recognize. Whether he is correct or not in his admonition is currently a topic of debate among various sectors in the legal profession.
UPDATE: Professor Stephen Bainbridge, one of Delaware’s favorite corporate law scholars, has written an erudite response to AG Barr’s article, with copious citations and quotes from the good professor’s own extensive scholarship on the topic, as well as the publications of other leading authorities. Among the quotes in his article linked above, is one from a former Chancellor and Delaware Supreme Court Chief Justice, described as “pro-ESG”, which follows: “It is not only hollow but also injurious to social welfare to declare that directors can and should do the right thing by promoting interests other than stockholder interests.”
SECOND UPDATE: The Chancellor of the Delaware Court of Chancery, as reported in an article by Reuters, responded during a seminar to the referenced article by AG Barr, and Vice Chancellor Travis Laster also provided a rebuttal on LinkedIn, and invited AG Barr to a debate, as described in follow-up commentary by Professor Bainbridge–which includes, as usual, copious citations to his own extensive scholarship and the publications of other corporate law scholars.