Document Type


Publication Title

Business Lawyer

Publication Date

Spring 2019


A decade after the global financial crisis, corporate governance is in a state of flux. A conceptual shift is underway. Years ago, in "first wave" governance, boards had a cozy relationship with the company C-suite. In "second wave" governance, which took hold in the 1970s, legal academics reimagined the board's role, conceptualizing directors as monitors charged with limiting waste and abuse that can arise in agency relationships. Now, we find ourselves at the threshold of "third wave" governance, in which boards are asked to grapple immediately and candidly with both the financial aspects of business and new environmental, social, and governance ("ESG") challenges that present themselves in governing globalized firms.

This essay affirms the centrality of the board in corporate governance and the need for candor in addressing the pragmatic challenges that boards face. Nevertheless, we observe profound problems with BSP governance that merit caution in the adoption of Bainbridge and Henderson's proposal. Our most fundamental objection is that board service cannot be conceived of as being essentially transactional. Construing the board's role as a mere portfolio of tasks and formal judgments analogous to ones performed by consultants and advisors to the firm is a conceptual error. Certainly, there are distinct tasks that boards execute. But the goal of "third wave" governance, from the board's perspective, will be to partner with the C-suite in accommodating ESG mandates and financial and operational goals to create long-term value. We view such corporate identity formation as a complex, informationally saturated, fiduciary responsibility incompatible with outsourcing to BSPs. In the alternative, we suggest a set of structurally modest board reforms which would promote the directors' ability to make a greater contribution to governance.



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