The Harvard Law School Forum on Corporate Governance https://corpgov.law.harvard.edu The leading online blog in the fields of corporate governance and financial regulation. Fri, 01 May 2026 11:32:38 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.8 https://corpgov.law.harvard.edu/wp-content/uploads/2024/02/cropped-photography-4-e1706898544564-1-32x32.png The Limits of Private Ordering – The Harvard Law School Forum on Corporate Governance https://corpgov.law.harvard.edu 32 32 The Limits of Private Ordering https://corpgov.law.harvard.edu/2009/11/24/the-limits-of-private-ordering/?utm_source=rss&utm_medium=rss&utm_campaign=the-limits-of-private-ordering https://corpgov.law.harvard.edu/2009/11/24/the-limits-of-private-ordering/#comments Tue, 24 Nov 2009 17:12:14 +0000 http://blogs.law.harvard.edu/corpgov/?p=5599?d=20150106105949EST Posted by Beth Young, Harvard Law School, on Tuesday, November 24, 2009
Editor's Note:

Beth Young is a lecturer at Harvard Law School and a senior research fellow at The Corporate Library. This post is based on a paper prepared for the Council of Institutional Investors and the Shareowner Education Network; the paper is available here. The views and opinions expressed in the paper are those of Ms. Young and do not necessarily represent views or opinions of Council members, board of directors, or staff.

In June 2009, the Securities and Exchange Commission proposed to require public companies, under certain circumstances, to include in the company proxy statement and proxy card the names of director nominees submitted by substantial long-term shareholders (generally referred to as “access to the proxy” or “proxy access”). At the same time, the SEC proposed to amend Rule 14a-8(i)(8), the shareholder proposal rule’s “Election Exclusion”, to reverse a 2007 amendment and allow shareholders to submit proposals seeking the adoption of a proxy access regime. The comment period for the rulemaking expired on August 17, 2009, and the SEC received hundreds of comment letters.

Among commenters opposed to the adoption of Rule 14a-11, a common theme was that the SEC should refrain from imposing a uniform federal access procedure. Instead, these commenters urged, the SEC should facilitate private ordering to permit shareholders at each individual company to decide whether proxy access is desirable and to establish its precise contours. To that end, these commenters generally supported the SEC’s proposal to amend the Election Exclusion.

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