CJ: Hello and welcome to the Feminist Law Podcast. I’m your co-host Courtney Jones.
CT: And I’m your co-host Clara Topiol. We’re both co-founders of the Feminist Law Project and final year law students who are very passionate about feminism and the law. Today on the podcast, we have Nikki Williams, JB candidate at the University of Michigan. Could you please introduce yourself?
NW: Yes. Hi Clara, thank you so much for having me on the podcast. I’m excited to be here. I’m a 3rd year law student at the University of Michigan. Before Law school, I worked in the corporate sector for six years as a propriate communication consultant at a Forbes 500 company. I was first in investor relations in the CFO area and then I moved. That kind of sparked my initial interest in corporate law. At Michigan Law, I have been very passionate about writing, scholarship, and the advancement of women in law, specifically in corporate law. I have written in the Journal of Women and Law for three years here. I was the managing editor of the journal last year. I am currently developing my research and scholarship interest; I’m most interested right now in the ways we can regulate corporations to really impact people’s lives. This first piece came out recently about gender in corporate governance. I’m working on a piece right now about ESG and specifically how the social part of ESG impacts people’s lives. I’m so lucky to be here at Michigan surrounded by fantastic professors who are super supportive of my research.
CJ: Yes, it sounds like you had a really incredible career before even joining Law School and since you’ve started Law School, you’ve been really busy. So, could you tell us more about the field of law you would like to specialise in specifically and why you chose to specialise in that?
NW: Yes. I’m going to be practicing at a big law firm in New York in capital markets. So, I feel so lucky to have been so lucky to get an offer at a fantastic firm which has a great capital markets group. Background, that not all listeners know exactly how a capital markets deal works, everyone has the same goal. You’re not going against the other side in an argumentative way, you’re trying to push the deal through. There’s the company which is working towards any number of equity deals and then they need an underwriter, typically a bank, to fund the deal. The firm that I’m working for usually represents the bank. I decided to go into capital markets pretty quickly after my 1L year. I lived in the US for Law School and to make big decisions during 1L in terms of what we want to do, whether we want to go in a firm or if we want to go into more of a public interest role. Then, usually you go work at the firm after your 2L year. After my 1L year, I was really interested in corporate law, I wanted to try it right away to figure out what even is law, what do I do on a day-to-day… there was a really fantastic opportunity to go to a firm in Frankfurt, Germany and I worked on a deal in the Middle East in 2021, which is significant for two reasons: the markets were completely on fire and the firm I was working for was inundated with deals so I got actually to write the first draft of a huge IPO and I was actually sitting in a lot of the client meetings because they were so busy so I got to go first-hand and take notes and see what the client was saying. The second reason why 2021 was significant was because I couldn’t actually go to Frankfurt because of all the Covid restrictions and international travel. I was working in this job in the middle of the night from Michigan. Some client meetings sometimes were at 2am during my first week and I still loved it. I loved the work, I was so energized by it. So I thought, if I’m enjoying it this much working from 2am until whatever in the morning in Michigan, then I thought this is probably the field for me. Furthermore, I think that overall, I’m interested in corporate law because I think the way things are structured in the US right now in terms of regulatory scheme, usually we react after a scandal. Then there is legislation, 2008 financial crisis legislation… but I really don’t feel like that. I think that corporations affect our lives every day whether it’s working with, working for, you’re a consumer… so I think we should be more thoughtful about how we work with corporations at the legislation level.
CT: That sounds absolutely fascinating and sounds like you’ve already acquired quite valuable work experience to help you decide where you want to specialise in. You also recently wrote an article called ‘Making Mandates Last: Increasing Female Representation on Corporate Boards in the US’ which was recently published in the Michigan Journal of Gender and Law so first of all, congratulations for that.
NW: Thank you!
CT: In the article, you talk about the lack of diversity in the US and more specifically, the lack of women. Do you think legislation could potentially improve this disparity?
NW: Yes, absolutely, it can. We saw it in California with SB8-26 which mandated a particular number of women on boards. When this law was put into effect in California, the number of boards with no women were in the hundreds. Just in two years, that number reduced down to the single digits. Essentially, legislation works. How long it will last is another question. There are two big challenges to this type of legislation: in the US, one is the equal protection clause which exists at State and federal level. A lot of people have written about the equal protection clause widely, specifically when it comes to this issue. Essentially, those challenges state that it isn’t fair that women are given opportunity for one particular seat that’s not available to all genders. The second challenge is the corporate law doctrine and that’s the internal affairs doctrine which was the focus of my paper. Let’s assume for just a moment that we could get over the equal protection clause hurdle. We would also have to overcome this internal affairs doctrine hurdle to make something like this stick. Before I jump into what is the internal affairs doctrine, I will just back off for a second and talk about incorporating in the US. So, when a corporation forms in the US, it gets to choose which state it incorporates in. What I mean by that is where it files its paperwork. It’s as simple as that. They can incorporate in one state, do all their business somewhere else and in fact, that’s exactly what most corporations do. The majority of US corporations are incorporated in Delaware because of favourable laws, a specialised court for corporate disputes. Then, how does the internal affairs doctrine interact with that? It does three things: corporate law is state law. Each corporation is formed under the law of the state it chooses to incorporate so where does it file that paperwork. Here is the important part: the law of the state must govern a corporation’s internal affairs. So then, that leads to another deeper question: what is internal affairs? It’s really any matter which the corporation and its current directors, officer and shareholders falls under the relationships with each other. Legislation that mandates the number of women on boards falls directly under the internal affairs doctrine and it makes these women hugely vulnerable when it comes to corporate law. Most states will recognise this and they try to legislate around this by essentially reading their own Corporate Code which says ‘we control the internal affairs of corporations with significant activity here’. I’m hugely paraphrasing obviously. Courts consistently held that these types of State-level corporate doctrine conflicts with the internal affairs doctrine and have referred to Delaware every single time. This is another huge area that people aren’t talking about as much which is a real threat to this type of Bill, even if we overcame protection challenges.
CJ: Thank you for that really comprehensive answer and for explaining the background of corporate law and how it works. According to your article, California implemented mandate SB826 in 2018, which required publicly held corporations with executive offices in state to ensure that a quota of women on these boards was met. Do you think that implementing quotas is a realistic solution forward and was this particular mandate effective in allowing more women to access these boards?
NW: Yes. I think it’s a way forward. I don’t know if it has to be the solution forever, who knows? I think time will tell. The ideal long-term for someone like me who really cares about this issue is that we want legislation now, but eventually, we don’t want legislation because we don’t want the force of law to have to force corporations to take women on board; we want them to just do that. I think eventually, hopefully, this won’t have to be in place forever but right now, it was absolutely effective in California. It reduced the number of all-male boards more than significantly. I think it’s absolutely a realistic solution to bring attention to the issue and to highlight that women are being overlooked for board seats. I think we should continue to call attention to the issue until we realise that corporations are doing this on their own. I’m hopeful we will get there. At least in the US, when directors have been elected to boards, they tend to stick around for a little while and tend not to get voted out. Some companies do have term limits for boards but many don’t. when that’s the case, you might have a bunch of men who’ve been on these boards for decades so these regulations are going to help them access that opportunity that might not be available to them otherwise.
CJ: Often times, you hear about people arguing against quotas saying that it might make people think that women are perhaps less qualified on a board or it might cause people to discriminate against women because they think they’re not qualified to be there but are only there because of the quota. How do you think people can counter that argument?
NW: I have read a lot of those articles too. there is a lot of research that says that right now and this is before quotas, women had to be more qualified to get on a board and tended to have much more credentials than a younger male counterpart who had just been hired to the board. I think that that is one hurdle to overcome, giving them the opportunity that way. I think it’s a great question to ask and I think we don’t know whether women in the US have sat on the board yet because I haven’t read at least an empirical study that does from 2018 onwards how women are being treated on boards. I think that’s the next step, to make sure that women feel valued, and their voices are being heard. I think that SB826 was the first mandate of its kind, so we’ll just have to see. I’m hopeful for two reasons: that they won’t feel that level of discrimination, the tick a box discrimination. You can bring a woman on and with your board exactly the same if you had four men and bring one woman on. That just automatically is going to be a little bit easier on the interpersonal relations of the people who are on the board. Secondly, I think most of the challenges were equal protection challenges from conservative special interest through taxpayers. None of the challenges were from actual corporations affected by this. 0. That’s because so many talented women I think are qualified for these positions. I started the piece by talking about Facebook which is recent. Post-2010, went public with an all-male board and a journalist quickly came out with an article saying, ‘hey look, here are all the women Mark Zuckerberg couldn’t hire’ and the list goes on and these were really smart, capable women. I think women have the credentials, but they just need a chance. In terms of whether they were discriminated, I go back to the original part of my answer, I don’t know. I don’t want to override anyone’s experience by saying ‘oh they’re qualified, give them the chance’ if they’re feeling discriminated against. I think that’s the next step we need to work on: implementation.
CT: I completely agree with you and I think the line is so blurred in terms of the quota situation but I completely agree with you in the sense as well that legislation should only be temporary and hopefully we won’t need these frameworks in place anymore and it will be more of a subconscious decision to hire women because they deserve to be there. Looking back at mandate SB826 which we mentioned previously, in May 2022, it was actually overturned under the California’s equal protection clause. Could you please tell us more about why that is and what that means for women’s rights, especially in terms of access to corporate boards or similar?
NW: Yes, as you said it was overturned under California’s equal protection clause specifically. First of all, that doesn’t mean it’s off the table for the rest of the US. It certainly is influential. The court held that on its face, the law treats gender differently. I think time will tell what the impact is on women’s rights. On the one hand, SB826 had a huge impact from a practical standpoint; it did exactly what it said it was going to do. It also had a huge cultural impact, maybe even bigger than what people thought. A lot of people outside California got involved. Nasdaq and the New York Stock Exchange are now involved in this advocacy. Nasdaq has a mandate, and the New York Stock Exchange has a networking group. Then you had a lot of banks jumping in. You have a lot of pressure from other investment funds like Blackrock. To have that pressure from them is also really influential. I think that first of all, this is really influential on an advocacy state. Those private sectors mandates will go on; they’re not impacted by the legislation. It goes back to what we were talking about earlier: does the legislation need to stay in place forever or do we only need it for a few years as a step forward? I can’t say with 100% certainty that it did what it needed to do now that the private sector is on board where we’re 100% good going forward. I think we’ll see in the next few years whether it had a huge blow to women’s rights or not but I’m hopeful as of right now.
CJ: Given that it’s been so influential, do you think that there is any chance an appeal might happen in light of the overturn of the mandate SB826?
NW: Yes, the state of California has appealed. I’m not extremely helpful for the overturn though. When governor Brown signed the Bill in 2018, he indicated that it probably wouldn’t be effective forever and that they expected a lot of challenges. When they appealed, the injunction against the Bill was lifted for a short time but the appeal has already reinstated the injunction against the mandate so we’ll keep our eye at it over the next couple of months.
CT: Yes, we will definitely look at it and keep up with the news in terms of that. Going back to your article, you suggest two main solutions in terms of enhancing women’s access on corporate boards. The solutions are enacting a corporate code to mandate female representation on these boards and as well, a similar approach to mandate SB826. Which do you think responds most to the US’ current needs? I understand this might be a tricky question because obviously you suggested both but if we’re being critical here, which do you think is most apt?
NW: I think this is a pionist approach. I have this pionist dream that Delaware would implement the corporate code that would mandate women on corporate boards because so many of the corporations in the US are incorporated in Delaware. Then, you could still have equal protection challenges in Delaware and Delaware hasn’t indicated that they would like to do anything like this so that will be the ideal solution if equal protection challenges didn’t exist, but I think you play the legislation in the US. I think there is going to be so much backlash, especially as right now the political scene is so divided here. The second solution would be just pressuring the private sector to mirror SB826 a little bit more. I touched on these mandates earlier in the private sector with banks, financial institutions… these are already being implemented. Right now, just to list on the public exchange, you have to have at least one woman. They can do whatever they want. Especially right now, because they are less stringent. We haven’t talked about this yet but SB826 considered the women related to the size of the board so if you have ten people on your board, you had to hire more women than if you had four. With Nasdaq involvement, you only need to bring on one or two women depending on which mandate we’re talking about. Nasdaq, for their requirement, also has this explain-away clause which at least in my research, hasn’t come up as super transparent to which explanation it’ll take. Essentially, if a corporation doesn’t have a woman, they can’t explain why and still list on the exchange. I don’t know what explanation Nasdaq is accepting for that, but I think it’s a lot looser with the private sector. To go back to your original question, we would benefit hugely from tightly drafted legislation but because of the political landscape, I think the solution which probably fits better now is the private sector, really pressuring them to be a little bit more proportional with the mandates that are currently being implemented.
CJ: Yes absolutely, and based on what you just said, it sounds like there’s more transparency needed for the explain-away clause because it could potentially be used as a cop out to not have women on boards. Going on from that, what do you think is the most secure way of ensuring that women have a guaranteed right of access to corporate boards that is upheld and won’t be overturned in the future?
NW: Yes, keep the pressure on the private sector, especially right now. Don’t give in to those anti-ESG bills that are coming in. these are new. Since I’ve written the piece, this area of law is moving so fast in the US. I drafted this beginning of my 2L so last year. Since then, the more conservative States in the US come out with those anti-ESG bills; ESG is environment, social and governance. This falls directly under the governance part of that. What these bills essentially say is that state-run pension funds or other funds can’t work with banks which are using ESG practices. Right now, the focus is really on the E, the environment, because it’s the big pressure under ESG right now in the US. I can easily see that moving into social. Things will get scary with the private sector because right now, the narrative with governance and social is that where women are on board, it’s good for business. There’s all these studies that say ‘if a board has a women on it, they perform better with their stock, their return on equity is higher’. I kind of question those studies in my piece because I don’t think it’s good to just connect certain groups and genders with stock performance when it’s probably more of a correlation with a more progressive company. It’s probably smarter to hire women, more people from more diverse backgrounds. But, with these anti-ESG bills, it can change in a second and what investors think is profitable could change in a second. I wouldn’t want to see the women advocacy go down based on something like that. I think we have to be the most careful working with investors and exchanges and all of these people who are influential right now and make sure they remain influential in the future because that’s when it’s going to stick in the US and keep pushing against these anti-ESG bills.
CT: Yes, you make a really good point and especially I think, given how fast legislation changes nowadays. On that note, what dangers do you think are posed by the overturning of mandates such as SB826 in California and can this be detrimental to women’s rights in the US and if so, to what extent?
NW: I think it’s probably less detrimental to women’s rights than political, the political scheme. The danger is when you overturn something like this in California or any other State which wants to do something similar, it’s going to take a lot of political capital. At the end of the day, some bills might hold up, other states might not want to go through this, the news, the reversal, all that stuff… I think we shouldn’t underscore the fact that coprorations themselves make little noise about this. It’s not a big deal for them to comply. The media attention was such a win in and of itself, very positive on the whole. I think the overall impact on women remains to be seen. Like I said, I’m very hopeful that it will have more impact politically and legislatively on people who are making the rules than the actual women who are filling the seats because it’s been really smooth on that end, at least so far.
CJ: Yes, thank you for that, that’s definitely really interesting. On that note, if our listeners want to learn more about women’s rights of access to corporate boards or similar issues, where can they do this?
NW: There’s an organisation called Catalyst that has really great comprehensive reports on boards. I found this really helpful when looking at data. The state of California, if you’re interested in California specifically and how this mandate worked int eh US, they release really comprehensive reports every year including a pilot report from the very first year. Nasdaq has some great resources from the boardroom perspective; how corporations can think about this. You can look at different law schools, corporate governance forums, articles, news-worthy things and law firms. Law firms in California have really great client reports and memos that they publish right on their website because they want clients and prospective clients to know what the influence of the law will be. Those are great places to look and really reliable sources.
CT: Thank you for sharing those. If our listeners would like to learn more about your research and your work, where could they do so?
NW: You can connect with me on LinkedIn. Just search my name plus Michigan Law or you can connect with me on Twitter, my handle is @NikksAshley. I tweet mostly about Law School related things so yes, feel free to connect.
CJ: Thank you so much for joining our podcast today, it was lovely to have you.
NW: Thanks so much for having me.
CT: In today’s feminist news roundup, In today’s feminist news round up, Saad Lamjarred, a Morrocan star singer has been convicted of rape in France and sentenced to 6 years in prison. The rape took place in a Paris hotel in 2016. It isn’t clear whether he plans to appeal against the verdict.
CJ: Also, Spain has become the first European country to approve paid menstrual leave. The bill is part of a wider law which aims to facilitate access to abortion in public hospitals as well as provide free menstrual products in schools and prisons.
CT: Additionally, dozens of schoolgirls in Iran have been taken to hospital following a new wave of gas poisonings. More than 1000 students have been affected since November and it is believed that the poisonings are a deliberate attempt to force girls’ schools to close.
CJ: Finally, Stephen Bear has been sentenced to 21 months in prison for sharing a private video of him having sex with his ex-partner online. If you have any suggestions for this podcast, let us know directly via email at contact@feministlaw.org.
CT: Please also visit our website at feministlaw.org and follow us on Instagram and LinkedIn to keep up to date with our latest articles, podcasts, newsletters and exciting news.
CJ: The music from this podcast was sourced from Pixabay.com.
CT: Thanks for listening!