Caremark Compliance for the Next Twenty‐Five Years

One of the most influential cases in corporate governance is In re Caremark International Inc. Derivative Litigation (Caremark). In 1996, Caremark imposed a novel duty on boards of directors to make a good faith attempt to implement and exercise oversight over obligations leading to liability. Breach of this minimal duty has been difficult for plaintiffs to plead and prove, and the case law is littered with dismissed Caremark lawsuits. As Caremark's reign reaches a quarter‐century, however, its duties are primed to evolve. Two cases, Marchand v. Barnhill and In re Clovis Oncology, Inc. Derivative Litigation, took the rare step of allowing Caremark claims to survive motions to dismiss. These cases signal a new understanding of Caremark obligating boards not merely to attempt oversight, but to ensure proactively that such oversight is effective. This subtle but significant change in board duties is one to which the academic literature should respond. This article first reviews the Marchand and Clovis cases and argues that these cases hold significance for the future of Caremark claims. Second, this article studies client advisories from law firms and other sources that evaluate the Clovis and Marchand cases. It finds that while these advisories offer useful tactical responses, they lack strategic advice that would benefit boards over the long term. Filling the gap, this article presents long‐term strategic advice for boards not only to meet Caremark duties but also to thrive as exemplars of good governance and ethical leadership for the next twenty‐five years.     

Electoral Backlash against Climate Policy: A Natural Experiment on Retrospective Voting and Local Resistance to Public Policy

Retrospective voting studies typically examine policies where the public has common interests. By contrast, climate policy has broad public support but concentrated opposition in communities where costs are imposed. This spatial distribution of weak supporters and strong local opponents mirrors opposition to other policies with diffuse public benefits and concentrated local costs. I use a natural experiment to investigate whether citizens living in proximity to wind energy projects retrospectively punished an incumbent government because of its climate policy. Using both fixed effects and instrumental variable estimators, I identify electoral losses for the incumbent party ranging from 4 to 10%, with the effect persisting 3 km from wind turbines. There is also evidence that voters are informed, only punishing the government responsible for the policy. I conclude that the spatial distribution of citizens' policy preferences can affect democratic accountability through ‘spatially distorted signalling’, which can exacerbate political barriers to addressing climate change.