A Response to Calls for SEC-Mandated ESG Disclosure

Abstract

This Article responds to recent proposals calling for the SEC to adopt a mandatory ESG-disclosure framework. It illustrates how the breadth and vagueness of these proposals obscures the important—and controversial—policy questions that would need to be addressed before the SEC could move forward on the proposals in a principled way. The questions raised include some of the most contested in the field of corporate and securities law—such as the value of interjurisdictional competition for corporate charters, the right way to conceptualize the purpose of the corporation, the proper allocation of managerial power as between the board and shareholders, and the social desirability of fraud-on-the-market class actions.

Keywords: ESG, sustainability, sustainable investing, big three, corporate social responsibility, mandatory disclosure, securities and exchange commission, corporate purpose, charter competition, shareholder primacy, federalism, fraud-on-the-market, securities fraud, SASB, climate

JEL Classification: K22, M14, M48