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Reframing the DEI Case
Get PDFCorporate firms have long expressed their support for the idea that their organizations should become more demographically diverse while creating a culture that is inclusive of all members of the firm. These firms have traditionally, however, not been successful at improving demographic diversity and true inclusion within the upper echelons of their organizations. The status quo seemed unlikely to move, but expectations for corporate firms were upended after the #MeToo Movement of 2017 and 2018, which was followed by corporate support of the #BlackLivesMatter Movement in 2020. These two social movements, while distinct in many ways, forced firms to rethink how to approach the status of women and people of color within their organizations. It forced them to ask, yet again, but with renewed energy: “What is the best way to improve diversity and inclusion within firms?” This Article seeks to contribute to scholarly conversations aimed at addressing that, admittedly elusive, question head-on. It argues that in addition to pursuing the business and legal cases for diversity when crafting diversity, equity, and inclusion (“DEI”) programs, firms should also employ insights from behavioral ethics literature. By utilizing insights from behavioral ethics literature, firms can better prompt decisionmakers to recognize that DEI questions—whether under the business or legal case for diversity—are questions that should be evaluated from an ethical perspective. Scholars and firm leaders have long debated the accuracy of the business case rationale in support of DEI efforts. More recent scholarship has focused on the legal case in support of DEI efforts. This Article recognizes that firms committed to crafting meaningful DEI reforms must focus on both the business and legal cases, but they must reinforce the ethical ramifications of DEI concerns under both frameworks. In short, firms committed to creating a successful DEI program must find ways to evoke ethical framing when engaged in the creation of diverse, equitable, and inclusive organizational cultures
#MeToo and the Corporation in Popular Culture
Get PDF#MeToo’s initial virtual explosion in the fall of 2017 was very much about Hollywood, with famous actresses speaking out against famous producers, media moguls and celebrities, exposing the ubiquity of sexual harassment and sexual violence in and around the entertainment industry. Since then, #MeToo has made its way into Hollywood representations without much irony. Films and television shows have explicitly taken up the #MeToo themes, exploring issues of sexual harassment and violence and its afterlives. Many television shows, from the relaunched version of Murphy Brown to Brooklyn Nine-Nine to The Good Fight have incorporated #MeToo themes into episodes exploring the prevalence of sexual violence in women’s lives, and the enduring trauma of survivors. Other shows have taken #MeToo and sexual violence as their central theme, from the impact of sexual violence on survivors like I May Destroy You; with others like Unbelievable on the criminal justice system or like Promising Young Woman on revenge.
The first section briefly considers the negative representation of corporations in film. The second section turns to a detailed analysis of the #MeToo films and television shows, highlighting the way in which corporate actors are represented. The third section considers the real-life events which inspired the films and television shows. I do so not to point out factual inaccuracies, but rather as a way to think further about how the corporation is represented: What was and wasn’t deemed to be storyworthy can further highlight the narratives of corporate responsibility for sexual harassment and sexual violence. The story that emerges is a more complex one of corporate boards negotiating demands of multiple stakeholders, shareholder lawsuits, and reputational damage. Indeed, the more complex legal structure of the corporation is largely glossed over in the films and television shows. While they do narrate individual power struggles between corporate executives, and between those executives and the board, the multiple stakeholders of the corporate structure remains largely invisible. Shareholder actions and the fiduciary duties of directors of corporations are, not surprisingly, not the stuff of Hollywood dramas
Corporate Governance and Gender Equality: A Study of Comply-or-Explain Disclosure Regulation
Get PDFIn 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. More recently, the state of California introduced mandated quotas. Between these two approaches—the light touch of the SEC’s “pure disclosure” approach and the heavy hand of California’s quota approach—Nasdaq’s new listing rule reflects a principles-based philosophy that is operationalized through a “comply-or-explain” formulation. It requires listed companies to state whether they adhere to a particular standard of behavior (“comply”) and, if not, they must provide reasons for their lack of compliance (“explain”).
Despite its increasing popularity, little is known about how comply-or-explain regimes work in practice. This Article attempts to fill that gap and to inform real-time policy conversations by providing lessons from the initial years of another jurisdiction’s experiment with this very approach. Comply-or-explain disclosure requirements with respect to gender diversity on corporate boards have existed in Canada since 2014. We discuss the initial findings from our on-going project to analyze the effects of Canada’s regulation. Our qualitative content analysis of the texts of Canadian corporate disclosures involves a four-year period and entails over 3,000 firm-year observations.
At a time when international regulators and private actors are contemplating, developing, and refining economic governance tools with the intention of diversifying corporate governance systems, comply-or-explain holds great promise. But if it is to realize its full potential, certain implementation-based issues should be considered. We show that comply-or-explain’s effectiveness can be compromised when firms avoid measures that would result in enhanced organizational learning by presenting weak explanations for non-compliance. Without appropriate engagement by oversight bodies, comply-or-explain runs the risk of giving firms too much discretion to define what it means to comply and compliance, while following the letter of the law, may simply be performative
Privacy Lost: How the Montana Supreme Court Undercuts the Right of Privacy
Get PDFIn 1972, Montanans ratified a new constitution that included a “right of privacy.” The plain text of the provision fails to express the intent of the Framers who not only intended to afford Montanans a right, but also to impose a responsibility on the State to continuously and thoroughly examine State practices in light of evolving means of invading residents’ privacy. This intent has gone unrealized despite the fact that the intent of the Framers is clear, readily available, and the primary source state courts ought to use when interpreting the Constitution. This article delves into the transcripts of the 1972 Constitutional Convention to increase awareness of the true intent of the Framers—to create a right for residents and a responsibility for the government. The first part familiarizes the reader with the arguments made by Framers during the Convention and their intent with respect to the right of privacy. The second part explores how courts have interpreted the right of privacy and details the extent to which courts have diverged from the intent of the Framers; it also assesses the extent to which the legislative and executive branches of the Montana state government have advanced the intent and objectives of the delegates in terms of privacy protections. The third part examines the importance of the Montana Supreme Court as well as the legislative and executive branches reviving the Montana Constitution’s right of privacy and applying it to new threats to that right
Conviction on Interpretation, Advocate Adaptability, and the Future of Emojis and Emoticons as Evidence
Get PDFThe dawning of the digital age introduced new and unique interpretive quandaries for judges and litigators alike. These quandaries include (but are not limited to) misinterpretation of pictorial slang as used in instant messaging, new or collateral meanings invented by phrases paired with specific emoticons or emojis, and the existence of emojis alone as communicative accessories.
This Note analyzes how lawyers and judges have essential free reign to treat emojis as they see fit: a prosecutor can argue, even in good faith, that the inclusion of an emoji depicting an open flame means the sender knew the heroin he sold was laced with fentanyl. A family law attorney can presume a thumbs-up emoji meant informed consent to alleged parental kidnapping. The common consensus among jurists is that emojis are devoid of formality, irrelevant to courtroom analysis in most situations, and impossible to consistently interpret. While word-based slang is often addressed through means of experts, thorough interrogation, and witness testimony, picture-based slang has been relegated to gestures from the bench indicating sideline insignificance at best. While emoji meaning and intentionality often changes—even on a daily basis—litigators and judges do not have the luxury of ignoring them as a result. Emojis’ apparent ambiguity does not excuse willful ignorance any more than new and unfamiliar slang or code words can be ignored because their meaning is not plain-language apparent to the bench.
Litigators have a responsibility to understand how communication has changed in the digital age due to the introduction of pictorial slang. The steps to competency are threefold: 1) understand the interpretive consequences of copyright-derived cross-platform depiction diversity; 2) determine meaning and intentionality from the parties themselves or the parties’ communities (including racial, ethnic, and geographical factors); and 3) review and depict emojis in their natural habitat, the context in which they were originally seen, sent, and received
From Hashtag to Hash Value: Using the Hash Value Model to Report Child Sex Abuse Material
Get PDFIn the summer of 2021, Apple announced it would release a Child Safety Feature (CSF) aimed at reducing Child Sex Abuse Materials (CSAM) on its platform. The CSF would scan all images a user uploaded to their iCloud for CSAM, and Apple would report an account with 30 or more flagged images to the National Center for Missing and Exploited Children. Despite Apple’s good intentions, they received intense backlash, with many critics arguing the proposed CSF eroded a user’s privacy. This article explores the technology behind Apple’s CSF and compares it to similar features used by other prominent tech companies. The article further looks at how the Fourth Amendment has grown with technology yet struggles to find a balance between protecting children from online exploitation and privacy rights. Finally, the article proposes three solutions to this balancing issue: Supreme Court action, a uniform circuit test, or Congressional action
