ACorporation, Inc.: Corporate Form as Art Project and Advocacy

Development of the corporation was a key turning point in the institutional history of business. The concepts of life beyond the existence of its founders, limited liability, and the ability to accumulate massive amounts of capital through stock ownership changed the nature of commercial practice in the United States and around the world. This has not been without controversy, particularly as large corporations began to capture much of modern economic life. Great economic power has not always meant great responsibility, and concepts of corporate citizenship and legal “personhood” remain subjects of debate. Similarly, how corporations do, or ought to, navigate social responsibility is the subject of an extensive literature, both from legal scholars and business ethicists. This literature considers such diverse topics as the role of commons thinking in corporate governance, reporting on social responsibility issues, the interplay between economic theory and legal duties within the corporation, and so on. Yet, perhaps unsurprisingly, one area has not been the subject of significant study: the potential for responsible business advocacy through the corporate form as art

The Convergence of Financial and ESG Materiality: Taking Sustainability Mainstream

Sustainability reporting can be seen as an attempt to bring improved environmental, social, and governance (ESG) practices to mainstream business. However, this movement to mainstream is hampered by the disconnect between financial and ESG information. Both reporting streams use the concept of materiality to shape firms’ disclosure obligations, but the term carries different meanings for different organizations. One sustainability organization, the Sustainability Accounting Standards Board (SASB), has developed reporting standards to merge sustainability and financial information by leveraging the definition of materiality for financial reporting purposes. This use of financial materiality positions the SASB to collide with the Security and Exchange Commission\u27s (SEC) hands‐off attitude to ESG reporting. In the regulatory void left by the SEC\u27s inaction on sustainability reporting, the SASB provides the best route to reconceptualize materiality in line with society\u27s interest in sustainable business

The U.S. Plastics Problem: The Road to Circularity

Plastics pollution has been an issue in the United States since discovery of the Great Pacific Garbage Patch catapulted it to the forefront of news reporting. Regulatory and academic activity around plastics has had a common feature: it focused almost exclusively on one stage in plastics’ linear model and framed the problem as a waste problem. Challenges have come in two forms: the shift from the linear production model of take-make-waste to a sustainability paradigm represented by the concept of circular production, and disruption of the global plastics waste supply chain occasioned by changes in China’s waste import policies. These shifts are forcing countries to reassess their approach to plastics. This Article argues for an expanded view of the U.S. plastics problem, one that reframes the problem around sustainability and plastics’ full life cycle, rather than a focus on waste alone. It proposes regulatory interventions and ideas for a future research agenda to move the study and regulation of plastics from linear to circular

Evolving ESG Reporting Governance, Regime Theory, and Proactive Law: Predictions and Strategies

Transparency on ESG (environmental, social, and governance) is an important, if imperfect, step in striving for sustainability. Because a constellation of nonprofit organizations created voluntary reporting frameworks with little government involvement, ESG reporting governance is institutionally dense and fragmented. Reporting companies and information users have both expressed dissatisfaction. In 2020, standard-setting organizations indicated their intent to cooperate to simplify ESG reporting rules. In a different yet similar context, scholars utilize regime theory to understand institutional density and the potential for international cooperation, primarily among states. This article is the first to apply regime theory to ESG reporting governance architecture to better understand this unusual arena of rulemaking. It identifies key obstacles to global consolidation of ESG reporting governance and predicts that differences between the reporting philosophies in the European Union and the United States are among the factors that will prevent global consolidation of ESG reporting governance. This article concludes with advice for practitioners. It draws on law and strategy and proactive law literature to propose approaches for reporting companies navigating the complex landscape of ESG reporting governance

Fostering Corporate Sustainability Through Directors\u27 Duties: South Africa\u27s Attempt to Align Corporate Governance with Its Constitution

The 1990s saw a dramatic increase in interest in two streams of activity related to business conduct--corporate governance and corporate sustainability. While commanding significant attention, these two fields produced modest change in corporate behavior, at best. Part of this phenomenon is because the two streams are separate, with disconnected legal and governance structures. Missing from the discussion is the potential to leverage corporate governance to foster corporate sustainability, to infuse social and environmental factors into corporate law through corporate law itself. This article contributes to the literature on corporate governance and corporate sustainability by examining South Africa\u27s experiment in aligning corporate law with constitutional principles. South Africa has built legal infrastructure in the form of its Constitution and Companies Act that could leverage corporate governance, specifically the duties of directors, as a force to serve societal interests. However, the state of South Africa\u27s statutory and common law holds uncertainties that could derail the country\u27s attempt to align corporate law with constitutional law. We assess the current state of South Africa\u27s constitutional and company law and identify potential interpretive streams open to the South African judiciary as it builds the nation\u27s common law. We conclude that, while South Africa has created much of the necessary legal infrastructure for alignment, it faces major challenges to interpreting company law in a manner that fulfills the promise of aligning it with the Constitution