In Duty and Diversity, two distinguished voices in business law, Professor Chris Brummer and former Chief Justice of the Delaware Supreme Court Leo E. Strine, Jr., make the case that corporate law provides “critical tools” to support corporations in taking effective action to help reduce racial and gender inequality. Specifically, they argue that “the pursuit of Diversity, Equity, and Inclusion is solidly authorized by the operation of traditional corporate law principles and can even be easily squared with the views of those who embrace what has come to be known as ‘shareholder primacy.’ ”Examining demographics in corporate boards and executive suites, the related empirical debate, and issues of corporate reputation and risk management, Brummer and Strine conclude that a sound business rationale exists for corporations to cultivate diversity in their organizations and to welcome working with a wide range of stakeholders.
The Article makes a major contribution to corporate law, and more specifically to the promotion of DEI within the field. Many aspects of this excellent Article deserve attention, but this brief Response modestly aims to amplify one: its embrace of a dynamic approach to understanding fiduciary principles that is tightly connected to external laws and social norms.
Above all, Brummer and Strine orient the pursuit of DEI as a fiduciary matter. In doing so, they build on scholarly work that has made the business case and emphasized the moral imperative of corporations promoting diversity. And they set their sights on grounding DEI practices in everyday corporate law concerns by incorporating “external” laws and evolving investor preferences into the “internal” realm of fiduciary duty and board oversight. Importantly, their approach treats corporate law as part of a broader legal framework for corporate and fiduciary accountability, rather than as an independent silo. This approach deserves highlighting and raises
thought-provoking questions for future examination.
DEI, Diversity Equity and Inclusion, racial equality, gender equality
Vanderbilt Law Review En Banc
75 Vand. L. Rev. En Banc 87 (2022).