Continuing Education for Directors of Public Companies

Directors of public companies are responsible for overseeing complex organizations in a rapidly changing business environment, but they are not required to engage in continuing education. This creates a danger that directors will not have the knowledge they need to meet the significant demands of overseeing public companies. To address this, public companies should adopt mandatory continuing education policies for their boards, and the Securities and Exchange Commission should require public companies to disclose basic information about their continuing education programs in their proxy statements. This is the first scholarly article to address the issue of mandatory continuing education for directors of public companies. Public company boards have always needed continuing education. In this Article, I demonstrate that the need for continuing education is especially critical today. The responsibilities of the public company board have expanded dramatically over the last ten years. At the same time, the composition of public company boards has transformed, with less experienced individuals more likely to join public company boards than in the past. One would have expected public companies to respond to these two trends by adopting mandatory continuing education policies for their boards. However, they have not. I surveyed the organizational documents and proxy statements of sixty public companies, and I discovered that 93% of the surveyed companies do not require ongoing education for their directors; most public companies merely “encourage” directors to do so. In addition, many public companies currently claim to provide continuing education to directors on a voluntary basis, but they do not provide the necessary information to determine whether the programs are effective. Therefore, I recommend that the SEC promulgate rules requiring public companies to disclose (1) whether they have adopted a mandatory continuing education policy for their directors, and, if not, why not; and (2) basic information about their continuing education programs, including the content of the program, the amount of education provided to directors, and the identities of directors who participated in continuing education during the previous year. If adopted, these proposed rules will encourage public companies to provide effective continuing education to their boards, ensuring that directors will have the knowledge needed to meet their oversight responsibilities

The Death of the Evolving Standards of Decency

The Eighth Amendment Punishments Clause is in jeopardy. The con-stitutionality of punishments is usually judged according to the “evolv-ing standards of decency that mark the progress of a maturing socie-ty.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living con-stitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diamet-rically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and the Court has not been shy about wielding its originalist wand. Further, the current Court is quite will-ing to set aside decades worth of entrenched precedent, as it did in Dobbs—its recent abortion decision. The Court’s originalist approach, paired with its disrespect for precedent, puts the Eighth Amendment living constitution approach examining the evolving standards of de-cency on very shaky ground. Even though the Court has long adhered to this test, a willingness to set aside precedent and put an originalist approach in its place seems to be in the works. Such a turn toward originalism would push us back to the barbaric punishments availa-ble at the time of the Founding and reverse current Eighth Amend-ment bans that prevent states from executing juveniles and intellectu-ally disabled people. Such a death of the evolving standards of decency would also render the Eighth Amendment a dead letter