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Between Promise and Power: Artificial Intelligence, Shareholder Activism, and the Corporate Governance of the Next Generation
No full textArtificial intelligence (AI) is poised to influence the dynamics of corporate governance, with shareholder activism emerging as a particularly dynamic and contested domain of transformation.
Institutional investors are already leveraging sophisticated AI-powered tools to enhance decision-making and manage risk. At the same time, AI offers new possibilities for smaller and traditionally marginalized shareholders. By enabling real-time monitoring and strategic analysis, AI can amplify the power of individual investors—especially younger cohorts who combine technological fluency with values such as environmental sustainability and diversity—to shape identity-driven proxy campaigns.
In helping surface resonant causes, AI tools may therefore support the translation of generational priorities into coordinated, data-enhanced proxy strategies capable of mobilizing dispersed shareholders around a common normative objective. The interaction between this potential and the value commitments of Millennial and Gen Z investors may give rise to a distinct form of identity-driven activism, characterized by value alignment, strategic targeting, and campaign design centered on generational priorities. This form of activism is not limited to environmental or inclusivity initiatives but may involve any generational cause, provided that it fosters a shared sense of identity and purpose among investors.
However, empirical data from the 2022–2024 proxy seasons suggest that AI’s democratizing promise remains largely aspirational. Benefits continue to accrue disproportionately to large, well-capitalized actors, while smaller investors face persistent structural and behavioral barriers.
Moreover, algorithmic opacity, ideological polarization, and the strategic adoption of AI by corporations to fortify defenses against activism may limit AI’s transformative capacity. In fact, while AI tools could help insurgents spot vulnerabilities to leverage in identity-driven campaigns, they are increasingly used by corporations to anticipate activist efforts and shield incumbent management.
I argue that realizing AI’s potential will require both regulatory oversight and voluntary inclusion strategies from corporate actors—particularly boards of directors. Boards may play a strategic role in anticipating generational pressures by integrating younger voices into governance structures and proactively reflecting generational values in corporate strategy. In doing so, they might preempt identity-driven activism and channel AI’s disruptive force toward inclusive, forward-looking reform.
If responsibly developed and deployed by corporate boards, AI could usher in a new paradigm of governance—one in which technological innovation drives social innovation, and generational values are actively integrated into corporate structures. This, in turn, could pave the way for a smoother transition as younger generations move into leadership roles in business and finance
Fixing History and Tradition and Levels of Generality
No full texthttps://scholarship.law.bu.edu/clark_speakers/1117/thumbnail.jp
Chapter 14: Obscurity and the Fallacy of No Privacy in Public Information
No full textThe main thesis of this chapter is that because there are so many different possible interpretations of ‘public information’, the concept cannot be used to justify data practices and surveillance without first articulating a more precise meaning that recognises what is at stake. By disposing of the myth that there is an objective and dispassionate concept of public information, judges and lawmakers can clear the way for information rules based on overt value choices. In short, if the concept of ‘public’ is going to shape people’s social and legal obligations, its meaning and neutrality should not be assumed.
My argument is based on a fundamental ambiguity: courts and lawmakers have failed to clarify the concept of public information. This ambiguity has resulted in a confused body of doctrine and frustrated attempts at clear, cogent policy surrounding the collection, use, and disclosure of information. The time has come to end this confusion.
My argument proceeds in two parts. First, I survey the law and literature to propose three different ways in which ‘public information’ is currently conceptualised: as a description, as a designation, or as the inverse of ‘private information’. These three notions all work differently, serve different values, and cause different problems.
Second, I make the case for clarity. Law and society should treat the notion of ‘public information’ as a value-laden construct that is not self-defining. Thus, whenever the concept of ‘public information’ is invoked to justify surveillance and data practices, it should be scrutinised and clarified. Regardless of whether policymakers and society think of public as a description, designation, or the inverse of privacy, our analytical frameworks for making that determination are out of whack. There must be some workable way to determine what information should be broadly available to all in the data commons and what sorts of practices are generally acceptable. If everything is private, then nothing is. And if nothing is private, we all suffer.
To that end, I propose that two concepts should be incorporated into the calculus that determines whether information is public: obscurity and trust. These two concepts play a key role in shaping people’s decisions about when, where, how, and with whom to share information or interact with others
Chapter 11: Beyond Digital Pessimism: How a Focus on Trust Can Enhance EU Digital Law
Full text linkLawmakers looking to foster technological innovation on the European market are adopting laws they hope will promote consumer trust in digital products. Their strategy can be broken down into three components. First, they aim to empower consumers to choose how much data they want to share with companies through an express consent framework. Second, they seek to avoid harms from digital products through product safety law such as adapting the Product Safety Regulation to digital products or adopting the AI Act. Third, they endeavor to prevent manipulation of consumers through digital means.
In this essay, we argue that while laudable, these efforts fall short of reaching their goal. For instance, the express consent framework does not offer real choice to consumers, and the EU’s approach to preventing manipulation has a counterproductive focus on consumers as rational agents. More broadly, we contend that avoiding negative outcomes is not enough to build trust with consumers. Building trust requires creating shared positive experiences between digital companies and product users.
To promote trust in digital products, we propose the EU should adopt a principle-based approach. More specifically, we suggest four principles should be incorporated into EU digital law. The principle of confidentiality should be operationalized as discretion, or the quality of behaving or speaking in such a way as to avoid causing offense or revealing private information. Transparency should be replaced with honesty, which would empower consumers to make real choices instead of consenting to hundreds of pages of user agreement without being truly informed. Security should become protection, incorporating a broader duty to safeguard the interests of those who share their data or use AI systems. Finally, there should be a duty of loyalty, which would require that companies prioritize consumers’ interests over their own
The Unitary Theorists\u27 Appointments Clause Problems
No full textThe unitary executive theorists’ recent retreat to the Appointments Clause as a basis for unconditional presidential removal power is contradicted by the text and by overwhelming originalist evidence.
It is a surprising argument for a power of presidential removal, because the text of the Appointments Clause plainly requires both the President and Senate to appoint. The noncommon sense reading, that the president alone appoints, and thus the president can remove, was not in any of the Trump Administration’s briefs, but it was in a single amicus brief, and it was picked up in oral argument and the mainstream media.
This argument is based on a misreading of my own research contradicting the unitary executive theory, taken out of context. It is true that common law had a default rule: removal was incidental to the power of appointment. Among the Founding sources who relied on this maxim, they overwhelmingly applied this maxim with a common sense reading of the Appointments Clause: if both the President and Senate were necessary to appoint, then both were necessary to remove. Both Hamilton (in Federalist No. 77) and Madison (in 1789) supported this reading of the common law maxim, even if they later gave other arguments for presidential removal more weight.
Unitary executive theorists citing this default rule maxim have not been able to find their interpretation of the Appointments Clause from a single “presidentialist” (someone who believed Article II implied a general presidential removal power, rather than the “congressionalist” interpretation of the Constitution gave Congress latitude about how to delegate removal power). Their only citation is to a member of the House (John Laurance) who then rejected this conclusion and explicitly endorsed Congress’s power to delegate removal and set conditions on presidential removal.
I have dug deeper and found that three presidentialists mentioned the maxim – the default rule – and the Appointments Clause, but not one relied on this argument as the basis for their presidentialist argument. They were offering rebuttals to the Senatorials’ strongest argument, either by relying on other clauses, dismissing the maxim’s relevance, and/or, arguendo, trying to weaken the Senatorial argument with other plausible readings.
The point here is not that this originalist evidence means the Constitution requires the Senate to consent in any removal. The point is that the Founding Era was sharply divided in three directions on a removal power between presidentialist, congressionalist, and senatorial interpretations. If unitary theorists are now retreating to the use of such a maxim that was understood overwhelmingly to count against presidential removal, they are revealing how little originalist evidence they have to cite
Negligent Hiring: Recidivism and Employment with a Criminal Record
Full text linkThis paper tackles a difficult legal and policy challenge—reducing the impact of criminal justice records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, the tort generates additional criminal behavior and worsens employment outcomes.
I first provide a survey of the current doctrine across the states and trace the origins of the tort through the common law. I show that widespread adoption of negligent hiring increased the number of property criminal offenses by over seven percent. Next, I examine state legislation clarifying the negligent hiring standard and reducing the likelihood that an employer will be found liable. I use newly constructed administrative data from over a dozen states to compare employment and recidivism rates in the states that changed their negligent hiring law to otherwise similar states that did not (a difference-in-differences analysis). I show that the laws increase employment by nine percent, wages by twenty-five to thirty-five percent, and lower reincarceration for a new criminal offense by twenty-five percent. Throughout the paper, I also address the impact of related policies by presenting new data and analysis of the effects of legislation restricting the timing of inquiries into criminal histories (Ban-the-Box legislation) and the use of hiring credits (the Work Opportunity Tax Credit)
The Missing Constitutional Law of Executive Conditions
No full textThis Article contributes to development of the constitutional law of executive conditions. Courts are wrestling with the constitutionality of federal efforts to encourage what the federal government cannot mandate—speech on particular subjects, participation in cooperative federalism programs, and so on—but have failed to appreciate an important distinction. Binding statutory conditions articulated by Congress or an executive branch delegee (statutory conditions) and non-binding executive conditions articulated by executive branch actors engaged in regulation by deal (executive conditions) are different in constitutionally salient ways that can and should inform the development of workable doctrine. Yet courts, advocates, and scholars have only begun to map these differences and to draw the lines that will help to inform doctrinal development.
While textual, historical, and precedential differences between executive and statutory conditions must be assessed doctrine by doctrine, this Article describes five over-arching functional differences between statutory and executive conditions. Executive conditions—including non-enforcement discretion, agenda setting, discretionary acts, and the like—are essential sources of flexibility in the day-to-day implementation of programs, so judicial review of such conditions brings a greater risk of incapacitating the federal government than does judicial review of statutory conditions. This functional difference may counsel more deferential or limited judicial review. On the other hand, executive conditions involve different risks, because they can be tailored or threatened, aggrandize executive power while circumventing congressional control, negate political safeguards of federalism and anti-subordination in the legislative process, come from any executive branch actor, and be compounded across programs or agencies. These functional differences bring greater threats to liberty, state sovereignty, and the separation of powers, increasing the need for judicial intervention. Together, these functional differences indicate that, rather than evaluating executive conditions by reflexively applying (or refusing to apply) precedents developed in review of statutory conditions, courts should develop distinctive constitutional doctrines for executive conditions tailored to check serious abuses without unduly interfering with day-to-day program administration.
Courts can tailor executive conditions doctrines to check abuses without unduly interfering with day-to-day program administration and should clarify rather than complicate doctrinal development by supporting clear, workable lines. The Article illustrates the workability of its intervention with two specific prescriptions. In the First Amendment context, courts have struggled to discern when a condition on speech is a permissible aspect of program definition or is impermissible leveraging of a program to regulate speech more broadly. By scrutinizing executive conditions articulated by novel executive branch actors or compounded across programs, courts can draw better lines and check abuses without interfering with ordinary program administration. And in the Spending Clause context, courts have struggled to identify when pressure turns to compulsion. Here, we suggest executive conditions that pull resources to achieve executive goals in excess of amounts appropriated by Congress require judicial scrutiny to safeguard Congress’s power of the purse, which can be done without incapacitating the ordinary implementation of federal programs
The Lifesaving Potential of Opioid Abatement Funds
No full textUS states, cities, counties, and tribes have reached $57 billion in settlements related to the opioid epidemic to be paid by manufacturers, distributors, and major retail pharmacies, such as Walmart and CVS. Although the deals were reached between 2021 and 2023, payouts will span nearly 2 decades, and recent reporting reveals how the recipients have begun spending the money as it comes in. Unfortunately, much of the spending is not for evidence-based interventions that would save lives at scale
How AI Destroys Institutions
No full textCivic institutions—the rule of law, universities, and a free press—are the backbone of democratic life. They are the mechanisms through which complex societies encourage cooperation and stability, while also adapting to changing circumstances. The real superpower of institutions is their ability to evolve and adapt within a hierarchy of authority and a framework for roles and rules, while maintaining legitimacy for the knowledge produced and the actions taken. Purpose-driven institutions built around transparency, cooperation, and accountability empower individuals to take intellectual risks and challenge the status quo. This happens through the machinations of interpersonal relationships within those institutions, which broaden perspectives and strengthen shared commitment to civic goals.
Unfortunately, the affordances of AI systems extinguish these institutional features at every turn. In this essay, we make one simple point: AI systems are built to function in ways that degrade and are likely to destroy our crucial civic institutions. The affordances of AI systems erode expertise, short-circuit decision-making, and isolate people from each other. They are anathema to the kind of evolution, transparency, cooperation, and accountability that give vital institutions their purpose and sustainability. In short, current AI systems are a death sentence for civic institutions, and we should treat them as such
Old Textualism, New Juristocracy: A History of Writing-Based Legal Culture
No full texthttps://scholarship.law.bu.edu/clark_speakers/1122/thumbnail.jp