September 2025

A while back, I posted about what was then the new voting choice programs being adopted at large mutual fund complexes, giving retail shareholders the right to choose voting policies that would apply to their pro rata share of fund ownership.

Well, Alon Brav, Tao Li, Dorothy S. Lund, and Zikui Pan have a new paper out, The Proxy Voting Choice Revolution, that dissects the early results for Vanguard’s funds, and what is actually the thing that stands out to me is not what the choices reveal about retail shareholders, but what they reveal about proxy advisors.

The thing is, proxy advisors have a benchmark policy of standard voting recommendations, and they have custom policies that can be tailored to the needs of their individual clients, and they also have “themed” policies which are somewhere in between – “off the rack” so a client doesn’t have to pay for tailoring, but specialized beyond the basic policy.  Except we don’t have a lot of insight into exactly how ballots are cast for these themed policies – until, apparently, now.

The authors are able to use the data from Vanguard to infer how Glass Lewis’s ESG themed voting policy…

Yesterday, the Nevada Supreme Court officially created a Commission to Study the Adjudication of Business Law Cases. I previously covered the Supreme Court’s proposal here and submitted a letter in support of the proposal.

The order creating the Commission contemplates a continuing public process. It provides that the Commission “shall conduct all hearings in public and post all meeting minutes and documents considered by the Commission on the Supreme Court’s website.”

At present, I have not been able to find a page set up specifically for the Commission on the Supreme Court’s website. Of course, much of Nevada’s state government has been struggling in recent weeks because of a large-scale cyber attack on Nevada systems–including the judiciary. The Supreme Court might also simply opt to continue to use the existing administrative docket. Or we could see something show up in the near future.

There are some changes from the Petition. The Petition identified 21 proposed members. The final order expands to 24 members, adding: (1) “Judge” as a Rural Representative; (2) “Attorney” as a Rural Representative; and (3) Virginia Valentine as a representative of the Nevada Resort Association.

Historically, it has been difficult to observe the operation of…

I keep explaining in various spaces so I may as well articulate it here too: It’s tough to make predictions, especially about the future, but I would be surprised if Texas wins the current chartering race, or at least, wins the race it’s currently running.

The issue for Texas is that it keeps demonstrating that it is not interested in crafting a well-designed – even manager-friendly – corporate law; instead, it is interested in using corporate governance as another cudgel in the culture war.

Let’s look, for example, at two recent amendments to its corporate code: allowing corporations to limit shareholder proposals by those who hold either less than $1 million worth of stock or 3% of voting shares; and the proxy advisor law that puts a variety of restrictions on proxy advisor advice.

These laws explicitly take aim at liberal-coded measures; shareholder proposals, for example, have historically been oriented toward liberal causes (despite a recent upsurge in anti-ESG proposals), and the proxy advisor law is targeted at “ESG” advice.

The laws are also a model of poor drafting. The shareholder proposal law, for example, does not apply to corporations chartered in Texas, but does apply…

Last week, I posted about the SEC’s proposal to reconsider its stance on arbitration of federal securities claims – today, they went and did what was entirely obvious and greenlighted the inclusion of securities arbitration provisions in charters and bylaws.

As I posted last week, Delaware just banned these in September, more in anticipation of bylaws that select a forum without jurisdiction to hear a dispute than arbitration provisions. Commissioner Atkins’s statement all but called on Delaware to change its law and/or invited other states to compete by offering a more favorable law; I expect we’ll see movement along those lines soon.

(I also imagine there will be a resurgence of arguments that arbitration provisions in corporate constitutive documents are not, in fact, contracts, and their enforceability, especially with respect to federal claims, is not controlled by the chartering state. I of course find that argument persuasive, but a number of courts have already rejected it in the context of forum selection bylaws; let’s see if they start to walk that back).

The thing is, it feels like we’re seeing an attack on public information on a number of fronts. To the attacks on the BLS and…

The College of Law at the University of Oklahoma (OU Law) welcomes applications and nominations for an outstanding faculty member for the Puterbaugh Foundation Chair, to begin in the Fall Semester of 2026.

The primary needs for this search are in the areas of constitutional law or contracts.  In addition, we have curricular needs in the following areas: bankruptcy, antitrust, partnership tax, corporate transactions, secured transactions, banking, finance, consumer law, cybersecurity law, technology and AI and the law, a doctrinal course in any field with a strong AI component, alternative dispute resolution, and experiential offerings in any of the areas listed above.

OU Law has a renowned reputation for scholarly excellence, which it aims to strengthen through the holder of this endowed position. OU Law is committed to attracting and retaining exceptional faculty with summer research grants, publication placement bonuses, and course reductions based on scholarly productivity. The Puterbaugh Foundation Chair comes with a competitive salary along with significant support for research and travel.

OU Law is a high-quality, affordable, and forward-looking institution. It boasts world-class facilities, a commitment to technological innovation, and a varied student body. OU Law sits on the university’s main campus in Norman, a college town…

As you start in on the new work week, I want to let you know about the Section on Leadership’s webinar on Wednesday, September 17th, 1:00 pm – 2:00 pm ET/12:00 pm – 1:00 pm CT/11:00 am – 12:00 am MT/10:00 am – 11:00 am PT.  The title for the program is “Adaptive Leadership Theory & Rule of Law as Resources in Challenging Times for Law & Legal Education.” The program description is set forth below.

Under authoritarian pressure, law schools may be tempted to self-censor or compromise their missions. Adaptive leadership offers deans and administrators strategic and moral tools to regulate stress, preserve mission integrity, and cultivate leadership across their communities. Complementing this, the Rule of Law Working Group—through the Holloran Center and Mellon-funded “Pluralizing” Legal Professional Identity project—is creating resources to embed democracy, equity, justice, and the rule of law into the curriculum.

You can register here.

The session has been organized, and is being led, by the section’s chair-elect, Tania Luma.  She is joined by Kendall Kerew and Kelly Terry.  This program promises to offer much wisdom to faculty and staff both in our institutional and instructional lives at work.  I am excited to…

In deleting old email messages, I found one on this job opening unopened from last month. Sorry for the delay in posting!

We’re delighted to share that Cornell is hiring a transactional clinician to be based in Ithaca in the Entrepreneurship Law Clinic and the Blassberg-Rice Center for Entrepreneurship Law. 

David Reiss recently joined Cornell’s faculty to launch a new section of the ELC at the Cornell Tech campus on Roosevelt Island, establishing Cornell’s first New York City-based law clinic in January 2025. Our search this year is for a co-director based in Ithaca. The new hire will have full-time teaching responsibility in the ELC, working alongside David. The appointment will be to the long-term, presumptively renewable, contract track for permanent clinical faculty at Cornell Law School, with voting rights and academic leave rights consistent with the other permanent clinicians.  

The full job posting is linked and attached.  

The application deadline is September 30, but we encourage candidates to apply early. If you have any questions, feel free to contact David (david.reiss@cornell.edu) and Beth (mbl235@cornell.edu). 

Seems like I’ve been writing about litigation limits in corporate constitutive documents since 2014 (because I have).  So many blog posts I can’t search them all, and multiple papers (here, here, here, and here)

The issue on the table specifically right now is arbitration.

The idea that corporations could use charter and bylaw provisions to require mandatory arbitration has been floating around for quite some time.  And it’s not arbitration they’re after; the point would be to require individualized arbitration, so that stockholder claims could not be brought as class actions.

Back in 2016, I published a paper arguing, among other things, that any such provisions could only apply to state claims, not federal securities claims.  But then the Delaware Supreme Court disagreed with me.

I have also argued that if such bylaw and charter provisions are considered potentially “contractual,” they are not governed by the internal affairs doctrine, and the law of the state of incorporation should not apply. The Delaware Supreme Court agrees on the former point and not the latter, leading to much confusion in courts outside of Delaware.

I have also argued that bylaws and charters…