Wandering Mind as Fiduciary Breach: Cognitive Duties of Corporate Directors

Abstract

Drawing on contemporary science and ancient wisdom, this Article assesses the ubiquitous human problem of mind wandering as it relates to the fiduciary obligations of corporate directors. Directors must endeavor to advance shareholder interests carefully and loyally. Boards have extremely wide latitude to determine the substance of corporate policies, but the law imposes certain
process obligations on corporate decision-making with particularity. Directors must approach their decision-making in an informed and deliberate way. They must listen to reports, and they must deliberate with their fellow directors before voting on corporate action at board meetings. This Article identifies the duty to concentrate as a heretofore unrecognized element of the fiduciary obligations of corporate directors. In the corporate boardroom, a wandering mind can be a fiduciary breach. Having made this innovative doctrinal contribution, the Article then situates its lessons in the context of a broader inquiry into the ways in which fiduciary concepts can inform an approach to personal renewal, excellence, and transcendence, in ordinary life, altogether separate from corporate affairs.

Keywords: Corporate law, corporate governance, fiduciary duties, directors, agency, cognition, mindfulness, concentration,

JEL Classification: A22, K20, K22