The HLS Forum recently published a post by Martin Lipton and Theodore Mirvis titled “Harvard Shareholder Rights Project is Wrong.” The post was based on a memorandum issued by their law firm, Wachtell, Lipton, Rozen & Katz (“Wachtell”), and signed by the authors of the post and two other top partners at the firm. The memo and post offer a strongly worded critique of Harvard Law School for permitting the operation of the Shareholder Rights Project (SRP) clinical program. The objections were twofold: First, the results achieved by the clinic – agreements by 42 large public companies to propose charter amendments declassifying their boards – are undesirable as a public policy matter. Second, the clinic was wrong to represent public pension funds and charitable endowments because this representation went beyond “provid[ing] educational opportunities while benefiting impoverished or underprivileged segments of society for which legal services are not readily available.”

I think the Wachtell memo-writers’ strongly held belief about the virtue of classified boards as a governance feature of large public firms has spilled over into an unfair attack on the Harvard SRP clinic based on a straitjacketed conception of clinical legal education not followed by leading American law schools. Wachtell has, of course, long been known for its invention of the poison pill and its expertise in takeover defenses. Because staggered boards make poison pills more powerful and fortify takeover defenses, it is understandable that Wachtell, and some of the clients it serves, do not welcome large-scale declassification of boards. Whether such declassification would benefit shareholders and the American economy is a legitimate question for debate. However, criticizing Harvard Law School for permitting the SRP to operate should not be part of this debate.

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