August 9, 2021

Board Diversity: Are State Diversity Statutes Unconstitutional?

UCLA’s Stephen Bainbridge recently blogged that, in his view, the 11 pending or adopted state board diversity statutes don’t pass constitutional muster. He points out that “9 of the 11 statutes apply not just to companies incorporated in the adopting state but also to companies headquartered in the state.” New York and Ohio’s legislation goes even further, with New York’s law applying to all companies authorized to do business in the state, and Ohio’s pending legislation extending to all companies “doing business” in the state.

Bainbridge says provisions in these statutes that purport to apply to companies not incorporated in the state in question run afoul of the internal affairs doctrine, which as he discussed in an earlier blog, he views as a constitutional requirement.

John Jenkins