Shadow Governance

57 Pages Posted: 4 Oct 2019 Last revised: 21 Oct 2019

See all articles by Yaron Nili

Yaron Nili

University of Wisconsin Law School

Cathy Hwang

Stanford Law School; University of Utah - S.J. Quinney College of Law

Date Written: October 2, 2019

Abstract

Corporations have something to say about some of the most important social and economic issues of our time--and one way they say it is through shadow governance. This Article spotlights a group of influential corporate policies that it calls "shadow governance." These non-charter, non-bylaw governance documents express a corporation's commitment in and process on issues as wide-ranging as campaign finance, environmental sustainability, and sexual harassment, but are largely overlooked by scholars and practitioners alike. This Article fills the gap: it reveals how shadow governance documents influence corporate decision-making and corporate behavior.

This Article makes two contributions to the literature. First, it uses original interviews with directors and general counsels to show how shadow governance documents influence corporate decision-making. Among other things, these documents set the board's annual agenda, define the metes and bounds of boards' and committees' responsibilities, and memorialize the corporation's values. These are all exceptionally important corporate functions that are relegated to shadow governance documents, where shareholders and other corporate outsiders have little ability to influence change. Second, this Article presents a descriptive account of the scope of shadow governance in the modern U.S. corporation. It analyzes a hand-collected dataset of shadow governance documents from companies listed in the Standard and Poor's 1500 to show the array of and variation in shadow governance documents.

This Article's exploration of shadow governance documents is both theoretically and practically important. Shadow governance documents are not just poorly understood--they are also largely overlooked by scholars and practitioners. This Article's account has the potential to open a new field for scholarly research, and also to provide a new field of battle for those who wish to influence corporate behavior.

Keywords: Corporate Law, Corporate Governance, Boards, Charters, Committee Charters, Disclosure, Securities Law, Directors

JEL Classification: K12, K22, G34, G38

Suggested Citation

Nili, Yaron and Hwang, Cathy, Shadow Governance (October 2, 2019). 108 California Law Review ___ (forthcoming 2020); Univ. of Wisconsin Legal Studies Research Paper #1487. Available at SSRN: https://ssrn.com/abstract=3463980

Yaron Nili (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Cathy Hwang

Stanford Law School ( email )

Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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