"[T]he formulation of generally applicable rules of
private conduct . . . requires the exercise of legislative
power." Department of Transp. v. Ass'n of
American R.R. 135 S. Ct. 1225, 1242 (2015) (Justice Thomas
concurring opinion)
ISS and Glass Lewis have arrogated to themselves the power to
make law, promulgating a civil code of astounding breadth and
detail, ruling over decisions on board composition, director
qualifications, term limits, majority voting standards, executive
compensation, capital structure, poison pills, staggered boards,
the advisability of mergers, spin-offs and recapitalizations,
and, increasingly, ESG policies ranging from animal welfare to
climate change, diversity, data security and political activities.
They enforce this civil code by advising their clients,
institutional investors with huge, varied and increasingly
concentrated holdings across the economy, to vote against proposals
or against directors if any aspect of the new civil
