Should Courts Uphold Corporate Board Diversity Statutes?

Abstract

This Article proceeds in six sections: Section I describes the corporate board diversity statutes (both enacted and potential) and identifies the legal issues they create. Section II analyzes the validity of these laws under the Fourteenth Amendment by discussing the standards applicable to race and sex. Sections III and IV analyze the validity of these laws under, respectively, the Dormant Commerce Clause and the internal affairs doctrine. Section V identifies who may challenge these laws, including considerations of standing. Section VI evaluates the public policy consequences of corporate board diversity statutes. The statute critiqued is from California, which has recently enacted a corporate board diversity statute that creates sex-based quotas. This Article will also comment on the California legislative declarations and findings and will sometimes discuss related legislative activity in other states.