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Perspectives on Minority Business Development

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Perspectives on Minority Business Development Perspectives on Minority Business Development Tuesday, April 20, 4:00-8:45 p.m. EDT Session 1: Perspectives of the Lawyers 4:05 - 4:45 p.m. EDT Discussion Leader: Dr. Hari M. Osofsky, Dean, Penn State Law and School of International Affairs, Distinguished Professor of Law, Professor of International Affairs and Geography Presenters: Robert Mundheim, of counsel, Shearman & Sterling, and former Dean, University of Pennsylvania Carey Law School; and Leo Strine, of counsel, Wachtell Lipton, and former Chief Justice on Delaware Supreme Court Event Co-Chairs: Samuel C. Thompson Jr. Sabrina Conyers Professor and Arthur Weiss Partner at Nelson Mullins Distinguished Faculty Scholar Riley & Scarborough at Penn State Law pennstatelaw.psu.edu/events/mbd-perspectives PENN STATE LAW, MINORITY BUSINESS DEVELOPMENT COURSE PERSPECTIVES ON MINORITY BUSINESS DEVELOPMENT, APRIL 20, 2021 MATERIALS FOR: SESSION 1: PERSPECTIVES OF THE LAWYERS: DISCUSSION LEADER: HARI M. OSOFSKY, DEAN, PENN STATE LAW IN UNIVERSITY PARK PRESENTERS: ROBERT MUNDHEIM, OF COUNSEL, SHEARMAN & STERLING, AND FORMER DEAN, UNIVERSITY OF PENNSYLVANIA CAREY LAW SCHOOL; AND LEO STRINE, OF COUNSEL, WACHTELL LIPTON, AND FORMER CHIEF JUSTICE ON DELAWARE SUPREME COURT ARTICLE PAGE NUMBERS DOC. 01A, DUTY AND DIVERSITY, CHRIS BRUMMER AND LEO STRINE, 1-1 through 1-90 75 VANDERBILT LAW REVIEW 1 (FORTHCOMING 2022) DOC. 01B, DUTY AND DIVERSITY, CHRIS BRUMMER AND LEO STRINE, HARVARD LAW SCHOOL 1-91 through 1-93 FORUM ON CORPORATE GOVERNANCE, MARCH 4, 2020 DOC. O1C TOWARD RACIAL EQUALITY: THE MOST IMPORTANT THINGS THE BUSINESS COMMUNITY CAN DO, LEO 1-94 through 1-104 STRINE, UNIV OF PENN LAW SCHOOL, OCTOBER 29, 2020 DOC. 01D, WHAT MILTON FRIEDMAN MISSED ABOUT SOCIAL INEQUALITY, LEO STRINE, THE NEW YORK TIMES, 1-105 through 1-108 SEPTEMBER 10, 2020 AND OCTOBER 1, 2020 DOC. 01E J.P. MORGAN LETTER TO SHAREHOLDERS, RE; BLACK 1-109 through 1-111 AND LATINX COMMUNITIES (APRIL 2021) DOC. 01F GOLDMAN SACHS, DIVERSITY GOALS AS REFLECTED ON ITS WEBSITE 1-112 through 1-126 FOR EXAMPLE, NO DIVERSE DIRECTOR; NO GS IPO SESSION 1: BIOGRAPHIES 1-i through 1-iii The Center for Law and Economic Studies Columbia University School of Law 435 West 116th Street New York, NY 10027-7201 (212) 854-3739 Duty and Diversity Chris Brummer Leo E. Strine, Jr. Working Paper No. 642 February 18, 2021 Do not quote or cite without author’s permission. An index to the working papers in the Columbia Law School Working Paper Series is located at https://law-economic-studies.law.columbia.edu/content/working-papers 1-1 Electronic copy available at: https://ssrn.com/abstract=3788159 University of Pennsylvania Carey Law School ILE INSTITUTE FOR LAW AND ECONOMICS A Joint Research Center of the Law School, the Wharton School, and the Department of Economics in the School of Arts and Sciences at the University of Pennsylvania ______________________________________________________________________________ RESEARCH PAPER NO. 21-08 Duty and Diversity Chris Brummer GEORGETOWN UNIVERSITY LAW CENTER Leo E. Strine, Jr. UNIVERSITY OF PENNSYLVANIA CAREY LAW SCHOOL COLUMBIA UNIVERSITY SCHOOL OF LAW HARVARD PROGRAM ON CORPORATE GOVERNANCE This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3788159 1-2 Electronic copy available at: https://ssrn.com/abstract=3788159 HARVARD LAW SCHOOL PROGRAM ON CORPORATE GOVERNANCE DUTY AND DIVERSITY Chris Brummer Leo E. Strine, Jr. Discussion Paper No. 2021-2 2/2021 Harvard Law School Cambridge, MA 02138 This paper can be downloaded without charge from: The Social Science Research Network Electronic Paper Collection: https://ssrn.com/abstract=3788159 1-3 Electronic copy available at: https://ssrn.com/abstract=3788159 DUTY AND DIVERSITY CHRIS BRUMMER* AND LEO E. STRINE, JR.** 75 VAND. L. REV. 1 (Forthcoming 2022) Abstract In the wake of the brutal deaths of George Floyd and Breonna Taylor, a slew of reforms from Wall Street to the West Coast have been introduced, all aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope and degree of legal obligation and practical effects. In this Article, we provide an old answer to the new questions facing DEI policy, and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we show that corporate fiduciaries are bound by their duties of loyalty to take affirmative steps to make sure that corporations comply with important civil rights and anti-discrimination laws and norms designed to ensure fair access to economic opportunity. We also show how corporate law principles like the business judgment rule do not just authorize, but indeed encourage American corporations to take effective action to help reduce racial and gender inequality, and increase inclusion, tolerance and diversity given the rational basis that exists connecting good DEI practices corporate reputation and sustainable firm value. By both incorporating requirements to comply with key anti-discrimination laws mandatorily, and enabling corporate DEI policies that go well beyond the legal minimum, corporate law offers critical tools with which corporations may address DEI goals that other reforms do not—and that can embed a commitment to diversity, equity, and inclusion in all aspects of corporate interactions with employees, customers, communities, and society generally. The question therefore is not whether corporate leaders can take effective action to help reduce racial and gender inequality—but will they? * Chris Brummer is the Agnes N. Williams Professor; Faculty Director, Institute of International Law; Professor of Law, Georgetown University Law Center. ** Leo E. Strine, Jr. is the former Chief Justice and Chancellor of the State of Delaware; Ira M. Millstein Distinguished Senior Fellow at the Ira M. Millstein Center for Global Markets and Corporate Governance at Columbia Law School; Michael L. Wachter Distinguished Fellow in Law and Policy at the University of Pennsylvania Carey Law School; Senior Fellow, Harvard Program on Corporate Governance; Henry Crown Fellow, Aspen Institute; Of Counsel, Wachtell, Lipton, Rosen & Katz. The authors gratefully acknowledge Carolyn Exarhakis, Grace Kim, Aneil Kovvali, Barbara Kuhn, Peggy Pfeiffer, Shen Teng, and Jacob Werden and input received from Dan Awrey, Steve Bainbridge, Michael Barr, Stacey Friedman, Joseph Hall, Adrienne Harris, Todd Henderson, Robert Jackson, Donald Langevoort, Sabastian Niles, Elizabeth Pollman, Ed Rock, Kim Rucker, Bob Thompson, Urska Velikonja, Jamillah Williams, and Yesha Yadav. 1-4 Electronic copy available at: https://ssrn.com/abstract=3788159 TABLE OF CONTENTS INTRODUCTION ............................................................................................ 3 I. THE DEMOGRAPHIC DILEMMA: THE INEQUALITY AND REPRESENTATIONAL GAP IN CORPORATE AMERICA ........................... 8 A. Corporate Boards: Their 21st Century Importance and the Representational Gap................................................................. 9 B. CEOs and C-Suite Officers: The Representational Chasm Deepens at the Top Management Level .................................. 14 C. Corporate Law’s Post-George Floyd, Pandemic Moment....... 18 II. DIVERSITY AND ITS CONNECTION TO SUSTAINABLE FIRM PROFITABILITY AND SHAREHOLDER VALUE ...................................... 25 A. The Empirical Debate .............................................................. 26 B. Governance and Risk Management ......................................... 31 C. Corporate Reputation............................................................... 38 III. AN OVERVIEW OF CURRENT REFORMS TO ENCOURAGE CORPORATE DIVERSITY, EQUITY, AND INCLUSION ................................................. 45 A. Federal Anti-Discrimination Laws .......................................... 46 B. SEC Board Diversity Disclosure Rules ................................... 49 C. State Law Initiatives ................................................................ 51 1. California’s Board Diversity Laws ............................................51 2. New York’s Board Diversity Study and Disclosure Mandate....52 D. Market “EESG” Initiatives ...................................................... 52 1. Investment Company Initiatives ................................................53 2. NASDAQ Listing Requirements ................................................55 3. The Goldman Sachs IPO Pledge ................................................56 E. The Limitations of External Regulation and the Corresponding Need for Corporate Action ...................................................... 56 IV. THE FUNDAMENTAL PRINCIPLES OF FIDUCIARY DUTY GOVERNING CORPORATE DIRECTORS AND OFFICERS ............................................ 61 A. The Legal Pursuit of Profit ...................................................... 62 1. The Negative and Positive Components of the Duty of Loyalty…………………………………………………………62 2. Caremark legal compliance, norms and their relationship to corporate value and reputation ...................................................66 B. Fiduciary Law’s Safe Harbor For Rational Business Judgments…… ........................................................................ 72 1-5 Electronic copy available at: https://ssrn.com/abstract=3788159 V. CORPORATE LAW’S VALUE
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