Over at Defining Ideas, Richard Epstein notes:

This past week, Nasdaq announced that it had applied to the Securities and Exchange Commission for authorization to impose diversity requirements on the boards of directors of its listed companies. The substantive proposal requires that each company include on its board at least two diverse directors, one of whom must be a woman (or, more precisely, one who self-identifies as female) and one who self-identifies as a member of an underrepresented minority, including “Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander, two or more races or ethnicities,” or as “LGBTQ+.” Whenever these targets are not met, the listed company must offer a public explanation as to why that is the case…. In defense of its diversity mandate, Nasdaq tries to bring itself within … traditional rationales by claiming that increasingly diverse boards will help “prevent fraudulent and manipulative acts and practices.” Such avoidance of fraud and manipulation purportedly follows from a decrease in groupthink that comes from airing diverse perspectives.

This made me wonder whether we’ll soon be seeing a similarly structured viewpoint diversity proposal from Nasdaq, given that according to the…

Friend of the blog Bernard Sharfman has posted The Conflict between Blackrock’s Shareholder Activism and ERISA’s Fiduciary Duties (Case Western Reserve Law Review, Forthcoming) on SSRN (here).  The abstract:

The focus of this Article is on the agency costs that may be created by the empty voting of investment advisers to index funds and how they can be mitigated so as to protect the value of private employee pension benefit plans. This Article focuses on BlackRock because it has taken a leadership role in the leveraging of its delegated voting authority. Therefore, the issue I address in this white paper is whether the fiduciary duties of a plan manager of an “employee pension benefit plan,” as authorized under the Employee Retirement Income Security Act of 1974 (“ERISA”), requires it to investigate BlackRock’s shareholder activism. This indirect approach is required as the fiduciary duties of ERISA do not generally extend to mutual funds and ETFs and their investment advisors.

This Article takes the position that a plan manager has a fiduciary duty, the duty of prudence, to investigate BlackRock’s shareholder activism. This duty applies not only to the BlackRock’s mutual funds or ETFs that an ERISA plan invests in…

Via Forbes:

The world lost an intellectual giant this week when the economist Walter E. Williams passed away. Williams was the John M. Olin Distinguished Professor of Economics at George Mason University, an economist’s economist, a scholar’s scholar, and an unparalleled communicator of economic wisdom and ideas. He loved liberty, defended it eloquently, and went to great lengths to show how good intentions don’t readily translate into good outcomes.

Thomas Sowell, as quoted by his Twitter tribute account:

There was a time when the black conservative community would have consisted of me and Walter Williams. I know Walter used to say the two of us should never fly on the same plane otherwise the whole movement will disappear if the plane goes down. 

But see:

Here are some prominent Conservative Black Intellectuals who have written extensively on race/ethnic relations. Many have argued, with evidence, that affirmative action does not largely help its intended beneficiaries, and that statistical disparities do not imply discrimination[: Thomas Sowell, Walter E. Williams, Shelby Steele, Jason Riley, Candace Owens, Clarence Thomas, Ben Carson, John McWhorter, Larry Elder, Star Parker.] Will any of their books and articles be included in the enhanced efforts…

Came across the abstract below as part of my WestClip Alerts, you can find the SSRN version here.

The approaching anniversary of E.I. duPont deNemours & Co. v. Christopher is the impetus for this exploration and evaluation of the role of “commercial morality” in trade secret misappropriation doctrine. Christopher is the well-known industrial espionage case in which the U.S. Court of Appeals for the Fifth Circuit held that flying an airplane over an under-construction manufacturing facility to take photos of briefly-but-inevitably exposed trade secrets was an “improper means” of accessing a trade secret and was contrary to standards of “commercial morality.”

Commercial morality has played a significant but shifting role in trade secret law over the past seven decades and has become an important part of the contemporary trade secret doctrine lexicon, yet courts and commentators have not explored the meaning of this term. This study fills that gap in the literature by analyzing the origins of the commercial morality doctrine and its proper application in trade secret law. The development of U.S. commercial morality doctrine breaks down into four distinct time periods that illustrate the evolution of the doctrine in trade secret law over time, including the shift…

Over at the Harvard Business Law Review, Sanjai Bhagat has posted Economic Growth, Income Inequality, and the Rule of Law (here). Here’s what caught my eye:

Besides the size of the national pie, which is measured by GDP, senior policy makers and the media across the globe are increasingly concerned about how this pie is sliced, that is, about income inequality. We find that countries with greater adherence to Rule of Law are characterized by less income inequality. Additionally, we find that countries with greater GDP per capita are characterized by less income inequality; however, once we control for Rule of Law in the country, we do not observe this negative correlation between GDP per capita and income inequality. This further highlights that adherence to the Rule of Law relates to reducing income inequality.