Papers by Cynthia Williams
The enclosed rulemaking petition: ï‚· Calls for the Commission to initiate notice and comment rulem... more The enclosed rulemaking petition: ï‚· Calls for the Commission to initiate notice and comment rulemaking to develop a comprehensive framework requiring issuers to disclose identified environmental, social, and governance (ESG) aspects of each public-reporting company's operations; ï‚· Lays out the statutory authority for the SEC to require ESG disclosure; ï‚· Discusses the clear materiality of ESG issues; ï‚· Highlights large asset managers' existing calls for standardized ESG disclosure; ï‚· Discusses the importance of such standardized ESG disclosure for companies and the competitive position of the U.S. capital markets; and ï‚· Points to the existing rulemaking petitions, investor proposals, and stakeholder engagements on human capital management, climate, tax, human rights, gender pay ratios, and political spending, and highlights how these efforts suggest, in aggregate, that it is time for the SEC to bring coherence to this area.
Tulsa Law Review, 2015
2. In the common law countries of the UK, U.S., and Canada, this principle is traced to Salomon v... more 2. In the common law countries of the UK, U.S., and Canada, this principle is traced to Salomon v. Salomon & Co., [1897] AC 33 (HL). In that opinion, creditors of A. Salomon & Co., Ltd. sought payment from Aron Salomon for debts incurred by A. Salomon & Co., which the House of Lords construed as a "one-man firm" wholly owned by Aron Salomon. Lord Herschell, in ruling against the creditors, in one paragraph put into place concepts that remain foundational today, to whit: I am at a loss to understand what is meant by saying that A Salomon & Co, Ltd is but an alias for A Salomon. It is not another name for the same person; the company is ex hypothesi a distinct legal person. As little am I able to adopt the view that the company was the agent of Salomon to carry on his business for him. In a popular sense a company may in every case be said to carry on business for and on behalf of its shareholders, but this certainly does not on point of law constitute the relation of principal and agent between them or render the shareholders liable to indemnify the company against the debts which it incurs. Id. As discussed below, economic accounts of the corporation continue to mistake the agency relationships within the firm by suggesting that the shareholders are the "principal" in the relationship and the board of directors their agent. See infra text accompanying note 28.
Part of the Law Commons This Editorial is brought to you for free and open access by the Faculty ... more Part of the Law Commons This Editorial is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in News, Editorials, and Commentaries by an authorized administrator of Osgoode Digital Commons.
SSRN Electronic Journal, 2011
The Embedded Firm, 2011
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 ... more This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons.
Hastings Int'l & Comp. L. Rev., 2000
Hello, I am Cynthia Williams and I'm here today to talk about a strategy to promote greater ... more Hello, I am Cynthia Williams and I'm here today to talk about a strategy to promote greater corporate accountability using the federal securities laws. The US capital markets are noted for their financial transparency. That financial transparency is the result of the mandatory ...
SSRN Electronic Journal, 2018
In fact, most of what we think of as "securities law" was a product of the 1929 crash. 3. On this... more In fact, most of what we think of as "securities law" was a product of the 1929 crash. 3. On this point, compare the regulatory developments discussed in Part I with the sources reviewed in Part V.A.-B. 4.
and the Sierra Club welcome the opportunity to comment on the recent Securities and Exchange Comm... more and the Sierra Club welcome the opportunity to comment on the recent Securities and Exchange Commission ("SEC") concept release on "Business and Financial Disclosure Required by Regulation S-K" ("Concept Release"). 1 In this Comment Letter, we address five issues: (1) the growth of socially-responsible investment (SRI) (Concept Release questions 15, 17); (2) the definition of materiality (question 6); (3) the materiality of sustainability information (questions 216-23); and (4) the limits of voluntary disclosure initiatives to meet the information needs of today's investors, both SRI investors and non-SRI (questions 205-15, 216-18, 223). We also ask the SEC to issue mandatory sustainability disclosure regulations and offer preliminary suggestions on the main aspects that sustainability disclosure regulations would have to cover in order to inform investment decisions while effectively addressing environmental, social, and governance concerns (questions 21, 23, 219). 1 Professor Cynthia A. Williams, Osler Chair in Business Law at Osgoode Hall Law School, was the principal author of this letter. Sachin Seth, recent law graduate from Osgoode Hall Law School, and Kaitlin Cordes and Lauren Waugh Columbia Center on Sustainable Investment contributed to development of the letter. Additional drafting support was provided by the Center for International Environmental Law attorneys Muriel Moody Korol and Melissa Blue Sky, and legal interns Harjot Kaur Dhillon, and Kimberly A. Reynolds. information to direct capital, and to date there is insufficient environmental, social, and governance (ESG) data for the markets to function properly in this regard. 2 None of the commenting organizations think that markets alone can solve the systemic problems that drive sustainability concerns, but we do recognize the importance of well-regulated markets in supporting the necessary transition to a socially-just, sustainable economy. II. SRI Investment A. The Growth of SRI Investment In order to understand the importance of sustainability data to investors, it is important to take account of the rapid growth of socially-responsible impact investment (SRI), although, as discussed below, it is by no means only, or even primarily, SRI investors who need and are seeking better sustainability disclosure. When the SEC last considered the issue of expanded social and environmental disclosure in a comprehensive fashion, between 1971 and 1975, there were two active "ethical funds" which by 1975 collectively held $18.6 million, or 0.0005% of mutual fund assets. 3 Today, $6.57 trillion of assets are managed with SRI parameters in the United States, representing close to 18% of money under professional management. 4
Fordham L. Rev., 2006
In typical Cravath style, while working on the case we first collected and read all of the lower ... more In typical Cravath style, while working on the case we first collected and read all of the lower court opinions that had been issued on the retroactivity issue-and there had been a blizzard of them in the two years since the amendments were enacted. In that review, Luddington v. Indiana Bell Telephone Co., a decision authored by Judge Richard Posner of the Seventh Circuit, stood out. 3 While recognizing that the Act did not "prohibit any conduct not already prohibited by Title VII," Judge Posner still thought it would be unfair to allow the new damages provisions to apply to conduct that had occurred prior to the effective date of the Act. 4 In locating the source of that unfairness, Judge Posner seemed to rely on an approach to law that H.L.A. Hart (and this Symposium's organizers) would call the external perspective, stating, The amount of care that individuals and firms take to avoid subjecting themselves to liability whether civil or criminal is a function of the severity of the sanction, and when the severity is increased they are entitled to an opportunity to readjust their level of care in light of the new environment created by the change. 5 This rationale thoroughly mystified the partners working on the case, attorneys with decades of collective experience advising clients. Where did this notion come from that a party could have a settled expectation of a certain level of damages? No one was arguing that the underlying substantive conduct necessary to conform to law had been changed by the amendments, and no one was arguing that the amount that the potential damages had been increased was enough to be characterized as a due process violation. So where was the unfairness? Rather, to the older generation of Cravath partners, Judge Thomas Ellis of the U.S. District Court for the Eastern District of Virginia had gotten it right in his rejoinder to Judge Posner: Judge Posner's view seems valid in the context of negligent conduct, but not in the context of intentional conduct. Congress surely did not intend for employers to perform a cost-benefit analysis to decide whether to engage in or permit illegal discriminatory conduct. Rather, Congress plainly meant that no cost-benefit ratio could justify unlawful discrimination. 6 To those of us newly graduated from law school in the late 1980s, the derivation of Judge Posner's notion was clear: It had come from law and economics and "unreconstructed" rational actor models of human behavior. We had been schooled in efficient breach of contract, the Learned Hand Formula for determining the amount of care to take to avoid accidents, and to protect settled expectations,. .. need not be applied to remedial legislation, such as §102, that does not proscribe any conduct that was previously legal."). 3. Luddington v. Ind. Bell Tel. Co., 966 F.2d 225 (7th Cir. 1992). 4. Id. at 229. 5. Id. 6.
The Commonwealth Climate and Law Initiative (CCLI) is a research, education, and outreach project... more The Commonwealth Climate and Law Initiative (CCLI) is a research, education, and outreach project focused on four Commonwealth countries: Australia, Canada, South Africa, and the United Kingdom. CCLI is examining the legal basis for directors and trustees to take account of physical climate change risk and societal responses to climate change, under prevailing statutory and common (judge-made) laws. In addition to the legal theory, it also aims to undertake a practical assessment of the materiality of these considerations, in terms of liability, and the scale, timing, probability of this and the potential implications for company and investor decision-making. Australia, Canada, South Africa, and the UK, despite only producing 6% of current annual global GHG emissions, account for 13% of global coal reserves and 11% of global oil reserves. Their stock exchanges also have 27% of all listed fossil fuel reserves and 36% of listed fossil fuel resources. They each have large and highly developed financial systems and account for 23% of the global pension assets and contain within the G20 the 8th, 5th, 14th, and 4th largest stock markets by market capitalisation respectively.
Scope Disclosure-mandatory and voluntary reports Survey-anonymous to all TSX-listed issuers Consu... more Scope Disclosure-mandatory and voluntary reports Survey-anonymous to all TSX-listed issuers Consultations-50+ including focus groups Research-existing climate disclosure requirements Key Themes Current Disclosure Practices Dissatisfaction with State of Disclosure Concerns about Mandatory Disclosure Requirements, including materiality CSA plans Guidance & Education Focus on Risk Governance & Oversight Monitoring of Climate-related Disclosures
SSRN Electronic Journal, 2019
The Expert Panel on Sustainable Finance has been commissioned by the Canadian Government to deter... more The Expert Panel on Sustainable Finance has been commissioned by the Canadian Government to determine how best to generate sustainable finance, a significant challenge given the carbon intensity of Canada's economy. The Expert Panel has defined sustainable finance as capital flows, risk management activities and financial processes that assimilate environmental and social factors as a means of promoting sustainable economic growth and the long-term stability of the financial system. While there are numerous strategies to be deployed to move Canada to a financially sustainable future, this report addresses two critically important issues: fiduciary obligation of corporate-and pension-fiduciaries, and national action on environmental, social and governance ("ESG") financial disclosure, including climate-related financial risk disclosure.
CSR, Sustainability, Ethics & Governance, 2015
Reformers at the turn of the century struggled to understand why people were the way they were an... more Reformers at the turn of the century struggled to understand why people were the way they were and whether they could really be changed. The reformers behind the New England Kitchen (NEK), a dietary reform experiment in 1890s Boston that hoped to change working-class diets, dedicated much of its efforts to answering the question at the heart of all social reform movements: Were people's behaviors determined by biological or social factors? In the course of their work, these reformers came to understand the relationship between food and bodies as central to social reform and sought to use dietary reform to change working-class bodies. Their actions and ideas disrupt the neat categories historians have come to rely upon when discussing reformist thought and push us to embrace the messiness of ideas as they are being worked out. This article explores these messy ideas, using four conceptions of the body that emerged from the NEK effortsthe caloric body, the changing body, the citizen body, and the managed body-to make sense of ideas that were later taken up by the USDA and the Children's Bureau, as well as other reform efforts in the Progressive Era. On January 24, 1890, Ellen Richards and Mary Hinman Abel opened the doors to the first New England Kitchen (NEK), and for the next five years, neighborhood tradesmen and urban working-class families came to fill jars with hot, inexpensive beef broth, vegetable soup, pea soup, corn mush, boiled hominy, oatmeal, cracked wheat, and spiced beef to bring home to eat with their families on Boston's south side. 1 The NEK was tiny, no more than a few hundred square feet, but visitors would surely have been struck by how open, well-lit, and organized the space was. Large windows along the top section of two walls flooded the space with sunlight and ventilated the busy kitchen. Canisters and dishes of varying sizes filled open shelves on one wall, and three big, barrel-shaped ovens occupied a spot in the corner. A small gas table for quick cooking took center stage, flanked by three tables, forming an L-shaped counter where customers watched kitchen staff hurry about preparing food. The NEK was not, however, simply a place to buy prepared food; within this small space, four reformers attempted to change working-class eating habits and, through this effort, change working-class people. Richards, a chemist at the Massachusetts Institute of Technology (MIT) who would later lead the home economics movement, ran the NEK with Abel, a domestic scientist whose time in Germany provided new models
Theoretical Inquiries in Law, 2011
Much of the legal literature discusses regulation and regulatory forms with a seemingly implicit ... more Much of the legal literature discusses regulation and regulatory forms with a seemingly implicit assumption that "those to be influenced" are inherently self-interested and thus motivated to comply with legal structures only when there are sufficient external incentives to do so. This view of the person is inconsistent with recent perspectives in the field of psychology. A law and morality perspective, coupled with insights from the field of psychology, asserts that influence, compliance, and motivation are far more complex than this legal literature would suggest. In this Article, we map the varying influence structures, motives, psychological needs, emotional mechanisms, and levels of moral reasoning that various forms of regulation, from hard law to soft law, might appeal to. We provide examples from global banking and one soft law initiative, the Equator Principles, to illustrate reasons psychology would suggest why soft law may be more effective in some circumstances in influencing behavior within the firm than hard law, while recognizing important limits to such influence.
![Research paper thumbnail of Trends in the Social [Ir]Responsibility of American Multinational Corporations: Increased Power, Diminished Accountability?](https://attachments.academia-assets.com/102300313/thumbnails/1.jpg)
SSRN Electronic Journal, 2013
The purpose of this invited essay is to assess the future of the CSR performance of American mult... more The purpose of this invited essay is to assess the future of the CSR performance of American multinationals in light of several ongoing trends. These trends include companies' voluntary CSR programs and the global self-regulatory standards for responsible company activities that are developing in almost every industry. Moreover, the decade-long project at the United Nations to identify multinational companies' responsibilities with respect to international human rights, ultimately spearheaded by Special Representative John Ruggie, has for the first time established global expectations of responsible corporate activity. At the same time, however, legal developments in the United States may be trending in the opposite direction, toward increased power and diminished accountability for corporations. Two legal developments that highlight this countertrend will frame this discussion. The first, the Supreme Court's decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) recognizes a constitutional right for corporations to give financial support to a wide range of electioneering activities, including by using corporate funds to pay for and broadcast advertisements for specific candidates for office. The effect is to allow American companies to further consolidate their already substantial political power. The second, the opinion by the U.S. Court of Appeals for the Second Circuit in Kiobel v.
SSRN Electronic Journal, 2004
5. For overviews of the discussion among law professors, see generally John C. Coffee, Jr., The F... more 5. For overviews of the discussion among law professors, see generally John C. Coffee, Jr., The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications, 93 Nw. U. L. REv. 641, 646-47 (1999), which characterizes the debate as one between neoclassical economists and another group of scholars emphasizing the importance of political forces and path dependency, and Sanford M. Jacoby, Corporate Governance in Comparative Perspective: Prospects for Convergence, 22 COMP. LABOR L. & POL'Y J. 5 (2000), which summarizes legal, political, and social forces driving convergence as well as factors such as path dependence and micro-and macroeconomic forces that limit convergence. For a more critical view of convergence, see Marleen O'Connor, Labor's Role in the American Corporate Governance Structure, 22 COMp. LABOR L. & POL'YJ. 97, 123-26 (2000), which focuses on the allocation of power between shareholders and labor. And for an optimistic pre-Enron account of the coming predominance of the American shareholder-centric view of the firm, see Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 GEO. L. J. 439, 449-58 (2001). 6. See generally Jeffrey N. Gordon, Pathways to Corporate Convergence? Two Steps on the Road to Shareholder Capitalism in Germany, 5 COLUM. J. EUR. L. 219 (1999) (examining whether cross-border mergers, such as the one between Chrysler and Daimler-Benz, are likely to lead to convergence).
SSRN Electronic Journal, 2005
C-923060v2 99000.00106 practices, and long-term social and environmental well-being. 2 Corporate ... more C-923060v2 99000.00106 practices, and long-term social and environmental well-being. 2 Corporate managers, it is argued, should consider not only their shareholders in making their decisions but also a variety of "stakeholder" constituencies, including employees, residents of communities affected by their activities, governments, and organizations advocating for various social and environmental interests. The CSR movement has manifested itself in a variety of ways. On the legal front, it has thus far had limited impact in this country. Although Enron and related disasters have led to legislation to make corporate conduct more transparent, the focus has been principally on financial issues. 3 In Europe and the United Kingdom, however, the CSR movement has been a major factor in moving corporate disclosure in the stakeholder direction. On the Continent, stakeholder interests have long enjoyed greater recognition than in the "Anglo-Saxon" corporate world, 4 as evidenced by the requirements in some European countries of labor representation on boards of directors and facility-level works councils. 5 Building on this tradition of stakeholder thinking, several countries now require direct attention to stakeholder interests through highly 2
The Oxford Handbook of Corporate Social Responsibility, 2009
Comparative studies of corporate social responsibility (CSR) are relatively rare, certainly as co... more Comparative studies of corporate social responsibility (CSR) are relatively rare, certainly as contrasted with other related fields, such as comparative corporate governance or comparative corporate law. This is to be expected in a field, such as CSR that is still ‘emergent’. While theoretical perspectives on corporate social performance or stakeholder management have been developed over two decades, it is only in the last decade that businesses have begun to exhibit serious evidence of CSR in their strategic management and stakeholder social reporting. This article goes on to explore how CSR can reflect wider national business and governance systems, such as market structures and rules, institutional norms, and respective responsibilities of governments, corporations and other social actors. A particularly exposed role, most notably for multinational corporations from the global north, is emerging for corporations in developing countries.
Journal of Organizational Behavior, 2006
We seek to bridge the macro concept of corporate social responsibility (CSR) with micro research ... more We seek to bridge the macro concept of corporate social responsibility (CSR) with micro research in organizational justice. A theoretical model is presented whereby employees' perceptions of CSR impact their subsequent emotions, attitudes, and behaviors, mediated by instrumental, relational, and deontic motives/needs, as well as moderated by organizations' social accounts.
Academy of Management Review, 2007
We provide a multilevel theoretical model to understand why business organizations are increasing... more We provide a multilevel theoretical model to understand why business organizations are increasingly engaging in corporate social responsibility (CSR) initiatives and thereby exhibiting the potential to exert positive social change. Our model integrates theories of organizational justice, corporate governance, and varieties of capitalism to argue that organizations are pressured to engage in CSR by many different actors, each driven by instrumental, relational, and moral motives. We conclude by highlighting empirical questions for future research and discussing some managerial implications.
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Papers by Cynthia Williams