Diversity in the Boardroom: A Content Analysis of Corporate Proxy Disclosures

My work in this field has focused on regulation by quota and regulation by disclosure. With regard to quotas, strikingly, the Norwegian law is not located in regulation that explicitly deals with human rights or equality issues; rather, it is found in the heart of the legal regime that gives life and personality to corporations – in Norwegian corporate law. I have conducted qualitative, interview-based research with Norwegian corporate directors, both men and women. It is only through understanding how the goals of the law have translated into the day-to-day existence of these individuals that we can begin to consider the “big picture” questions that accompany the quota-based approach. With regard to disclosure, I have chosen to focus on the U.S. as a second case study for four principal reasons. First, similar to the Norwegian law, the site that houses the U.S. rule is noteworthy. Once again, it is not found in regulation that focuses on anti-discrimination etc…; rather, it is located in the heart of the legal regime that governs the public issuance of shares – in U.S. securities law. Second, and related to the first, the U.S. rule (like the Norwegian law) has been controversial, painted by some as an unjustified intervention into market terrain and as being in tension with the underlying purpose of securities regulation. Third, quite simply, U.S. markets represent the biggest share of overall global market capitalization. Fourth, I am mindful of the argument of scholars such as Schuck that there is something special – something unique –about the U.S.’s historical engagement with the idea of diversity. My inquiry into the U.S. approach, using the diversity disclosure rule promulgated by the SEC, begins with an overview of its conceptual underpinnings. I then explore reactions to the rule and consider whether, in promulgating it, the SEC acted reasonably, or if it strayed significantly from its mandate. From there, I use a mixed-method, qualitative–quantitative content analysis to investigate the micro-dynamics of this approach. I take an initial temperature reading of corporate articulations of diversity under the first years of the rule. These articulations are particularly fascinating given that the SEC does not provide firms with a definition of the term “diversity”. The specific results of my study are forthcoming. Overall, it establishes that the concept of diversity carries multiple connotations for U.S. corporations. However, perhaps its most salient finding is that, when left to their own devices (i.e. in the absence of regulatory guidance), firms most frequently think in experiential terms and focus on a director’s prior experience, or knowledge and skills — rather than in socio-demographic terms with an eye to gender or racial diversity. As I have reported elsewhere, only approximately half of firms in my sample fell into the latter camp

Homogeneous Corporate Governance Cultures

The lack of gender parity in the governance of business corporations has ignited a heated global debate, leading policymakers to wrestle with difficult questions that lie at the intersection of market activity and social identity politics. Challenging Boardroom Homogeneity draws on semi-structured interviews with corporate board directors in Norway and documentary content analysis of corporate securities filings in the United States to investigate empirically two distinct regulatory models designed to address diversity in the boardroom — quotas and disclosure. The author’s study of the Norwegian quota model demonstrates the important role diversity can play in enhancing the quality of corporate governance, while also revealing the challenges diversity mandates pose. His analysis of the US regime shows how a disclosure model has led corporations to establish a vocabulary of “diversity.” At the same time, the analysis highlights the downsides of affording firms too much discretion in defining that concept. This book thus deepens ongoing policy conversations and offers new insights into the role law can play in reshaping the gendered dynamics of corporate governance cultures

Politics of Knowledge Dissemination: Corporate Reporting, Shareholder Voice, and Human Rights

This article considers the relationship between social disclosure and corporate accountability in Canada. It focuses on the potential benefits social disclosure can provide in terms of the overall human rights project. I explore this issue with reference to the broader theoretical frameworks of new governance and reflexive law. White I ground my analysis in these analytical approaches. I distance myself slightly from particular arguments in the literature to date: specifically, the argument that the disclosure process will result in self-correcting behaviour on the part of corporate decision makers. Rather, I argue that the value of social disclosure may lie more in its ability to empower socially conscious shareholders who will be equipped with information that can be used to engage corporate management in dialogue and influence corporate operations. I further contend that a movement towards enhanced social disclosure should be viewed as the corollary of recent developments in Canadian corporate law involving directors\u27 and officers\u27 fiduciary obligations

Shareholder Engagement in the Embedded Business Corporation: Investment Activism, Human Rights and TWAIL Discourse

The expansion of Canadian extractive corporations\u27 overseas business operations has led to serious concerns regarding human rights-related impacts. As these apprehensions grow, we see a countervailing rise in calls for government intervention and in levels of socially conscious shareholder advocacy. I focus on the latter as manifested in recent use of the shareholder proposal mechanism found in Canadian corporate law. Shareholder proposals, while under-theorized, provide a valuable lens through which to consider the argument that economic behaviour is embedded within social relations. In doing so, I situate my analysis within Third World Approaches to International Law (TWAIL) scholarship. Elsewhere, I have supported the use of corporate law tools in advancing the international human rights enterprise and argued that investment activism can be an essential component of this advancement. This paper represents a reflexive pause. I seek to problematize the shareholder proposal as a human rights advocacy tool and to examine it as a site of contestation

Human Rights Treaty Drafting through the Lens of Mental Disability: the Proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities

In this piece I explore whether, if established, the proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities will be an effective way to limit abuses of the rights of persons diagnosed with mental disabilities. In Section I, I discuss the failure of international human rights law to effectively address these abuses to date. In Section II, I consider the debate surrounding the need for a disability-specific Convention. In Section III, I argue that in order for the proposed Convention to be effective, and not simply a hollow mechanism, it must reject the traditional medical model of disability. Instead, the Convention should reflect a rights-based paradigm premised on a reformulation of disability as a social construct. I will argue that with respect to mental disability the medical model still prevails and, with reference to existing human rights instruments, I advance the position that there must be mindfulness of this model’s intrusion into the Convention drafting process. In Section IV, I make specific drafting recommendations that I hope will assist the proposed Convention to realize its full potential. In particular, I discuss some of the principal issues facing the drafters, including the type of treaty to be adopted (one based on non-discrimination or one which adopts a comprehensive approach) and the type of monitoring mechanism which might be established to satisfy both the desire to have a strong follow-up and the concern to avoid counter-productive repetition of existing mechanisms. My analysis is informed by my experience as a member of an NGO Delegation to the recent United Nations Working Group Meeting respecting the proposed Convention. Reference is made to psychological science material, particularly with respect to the efficacy of antipsychotic medications

Towards a Race and Gender-Concious Conception of the Firm: Canadian Corporate Governance, Law and Diversity

After the terrorist attacks of 11 September 2001 terrorism was added to the list of potentially catastrophic global events, such as global warming or nuclear explosions, which characterise Ulrich Beck\u27s risk society. Operating in an atmosphere of fear, executive governments and parliaments around the world take precautionary measures to prevent future terrorist acts - governments accumulate information, detain terrorism suspects, freeze funds and so on. International Relations scholars see the judiciary as a guardian of human rights that can stop or at least curb the excesses of the other two branches of government. The article argues that this view is naïve. The first section includes a brief historical overview of the judiciary\u27s tendency to go to war together with the executive in times of crisis, a tendency which goes back to the 19th century and well precedes risk society. To put the same idea in Foucauldian terms the judiciary governs itself through the prevailing regime of truth, whether the emergency is the war on terrorism or a different war. In the second section, the focus is on six sets of recent cases, two from Australia, Canada and the UK each. In almost all the cases the judiciary shows a willingness to defer to the executive on questions of national security. Based on the limited number of cases analysed, it is argued that in some respects the regime of truth of the war on terror is nothing new, while in other ways the reasoning of the judiciary post 9/11 has certain distinctive characteristics

Homogeneous Corporate Governance Cultures

The lack of gender parity in the governance of business corporations has ignited a heated global debate, leading policymakers to wrestle with difficult questions that lie at the intersection of market activity and social identity politics. Challenging Boardroom Homogeneity draws on semi-structured interviews with corporate board directors in Norway and documentary content analysis of corporate securities filings in the United States to investigate empirically two distinct regulatory models designed to address diversity in the boardroom — quotas and disclosure. The author’s study of the Norwegian quota model demonstrates the important role diversity can play in enhancing the quality of corporate governance, while also revealing the challenges diversity mandates pose. His analysis of the US regime shows how a disclosure model has led corporations to establish a vocabulary of “diversity.” At the same time, the analysis highlights the downsides of affording firms too much discretion in defining that concept. This book thus deepens ongoing policy conversations and offers new insights into the role law can play in reshaping the gendered dynamics of corporate governance cultures

Shareholder Engagement in the Embedded Business Corporation: Investment Activism, Human Rights and TWAIL Discourse

The expansion of Canadian extractive corporations\u27 overseas business operations has led to serious concerns regarding human rights-related impacts. As these apprehensions grow, we see a countervailing rise in calls for government intervention and in levels of socially conscious shareholder advocacy. I focus on the latter as manifested in recent use of the shareholder proposal mechanism found in Canadian corporate law. Shareholder proposals, while under-theorized, provide a valuable lens through which to consider the argument that economic behaviour is embedded within social relations. In doing so, I situate my analysis within Third World Approaches to International Law (TWAIL) scholarship. Elsewhere, I have supported the use of corporate law tools in advancing the international human rights enterprise and argued that investment activism can be an essential component of this advancement. This paper represents a reflexive pause. I seek to problematize the shareholder proposal as a human rights advocacy tool and to examine it as a site of contestation

Norway\u27s Socio-Legal Journey: A Qualitative Study of Boardroom Diversity Quotas

This is chapter 4 of Challenging Boardroom Homogeneity: Corporate Law, Governance, and Diversity (Cambridge University Press, forthcoming in 2015). In this chapter I investigate the quota-based approach to achieving gender balance in corporate boardrooms. Quotas and related target-based measures for publicly traded firms are currently in place in a number of countries, including Iceland, Belgium, France, Italy, and Norway and are at different stages of consideration in other jurisdictions, including Canada, the European Union, and Germany. I present findings from my qualitative, interview-based study of Norwegian corporate directors in order to provide empirical elucidation of how quota-based regimes operate in practice. The identity narratives of Norwegian board members offer particularly rich sources of insight, given that Norway was the first jurisdiction to pursue the quota path and thus has the most mature quota regime. While highly contentious when adopted, the Norwegian quota project unquestionably set the stage for subsequent legislative developments in other countries. I delve into the lived experiences of Norwegian directors who gained appointments as a result of Norway’s quota law, as well as those who held appointments before the law was enacted. Several questions frame my investigation. How have these individuals subjectively experienced, and made sense of, this intrusive form of regulation? How does legally required gender diversity affect their economic and institutional lives? And how has it shaped boardroom cultural dynamics and decision making, as well as the overall governance fabric of the board? The forced repopulation of boards along gender lines has disturbed the traditional order of corporate governance systems, dislocating established hierarchies of power in key market-based institutions. Norway represents the paradigmatic case of this disturbance and has set in motion a wave of corporate governance reform unlike any other. As such, it constitutes a fascinating and appropriate case study through which to consider the implications of quota regimes