Current Issue
VOLUME 6, ISSUE 2
Published September 21, 2025
Articles
Won’t Get Fooled Again: How Market Discipline Controlled the Threat of BlackRock’s Climate and Social Activism
J.B. Heaton
Commentators have expressed concern about the voting power of the largest asset managers. However, this concern is valid only if their voting deviates from the intentions of their investors. This is not necessarily assured, as investors wield significant power over these asset managers. If they disagree with the manager’s voting, they can threaten to pull, or actually withdraw, assets under management which are the lifeblood of the business.
BlackRock’s foray into climate and social activism between 2017 and 2021 is a strong example. Through its co-founder and Chief Executive Officer, Larry Fink, BlackRock came on strongly in 2017 in favor of a climate agenda, later adding a corporate social responsibility approach to business, and then pivoting hard back to an expanded climate agenda. By 2021, BlackRock had voted in favor of dissident directors who were proposed and fought for at great expense by a climate activist fund.
The backlash was swift and hard. BlackRock received considerable pushback from investors who disagreed with the strategy. For example, many investors believe that corporations exist to make money for their shareholders, that affirmative action is discrimination, and that there is no realistic way for the world to transition away from fossil fuels in the next several decades absent some breakthrough in physics. They did not want BlackRock voting their beneficial ownership in favor of opposing views. And the pushback of those investors worked. Under both threats and actual withdrawals of assets under management, BlackRock turned tail and returned to a mostly neutral approach, leaning ever so slightly toward the previously aggrieved investor base. All of a sudden, oil and gas had never looked so good to Mr. Fink.
This article lays out the history of BlackRock’s journey into climate and social activism, and its scampering retreat. That story has important implications for the ongoing debate about the power and influence of large asset managers.
Substantive Due Process and Bridging the Gap of Title VII Lateral Transfer Violations
Courtney Moore
Title VII of the Civil Rights Act of 1964 was originally intended to provide extensive protections against discrimination in the workplace. However, in practice, courts have limited the applicability of Title VII by imposing an additional “tangible harm” requirement for plaintiffs seeking to enforce their statutory rights. The “tangible harm” requirement is a judicially imposed standard that remains unsupported by the express language of Title VII. The consequence of the requirement shields discriminatory practices, such as discriminatory denials and forced lateral transfers from judicial review. The D.C. Circuit has eliminated the “tangible harm” requirement and has determined that discriminatory denials and forced lateral transfers, in and of itself, can constitute actionable discrimination. In the wake of Dobbs v. Jackson Women’s Health Organization, which signaled a departure from Substantive Due Process jurisprudence that has historically reinforced workplace protections, tensions are heightened as constitutional safeguards are being redefined. The need for statutory enforcement of employment protections, such as Title VII, is essential as once-reliable protections are being transformed with limited applicability. This article sets forth the argument that eliminating the “tangible harm” requirement will fulfill the purpose and intent of Title VII by ensuring that employees who are subjected to discriminatory practices, such as denials or forced transfers, will be protected without requiring unwarranted evidentiary requirements.
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Split: The Case of When Whistleblower Protections are Warranted and the Improper Incentives that May Lead to Unwarranted Reports
Kylie Runkle
Without a clear standard of what constitutes a “reasonable belief,” whistleblowers are at risk of not attaining protection from employer retaliation. Under the Sarbanes-Oxley Act, a whistleblowing employee has engaged in protected activity against employer retaliation when the whistleblower has a “reasonable belief” that their employer has committed a securities violation. However, in determining a whistleblower’s “reasonable belief,” the circuits are split between applying the reasonable person test or the totality of the circumstances test. Accordingly, this Note examines the differing theories of the Circuit Courts and the policy considerations underlying each test to determine to what extent they further the Sarbanes-Oxley Act’s goals. Ultimately, this Note recommends that the Supreme Court resolve the circuit split by adopting the reasonable person test.
Realignment Rifts: Navigating Antitrust in the New Era of College Sports
Reece Tack
This article examines the antitrust implications of recent college athletics conference realignments, focusing on the collapse of the Pac-12 and the emergence of the “Power Four.” Section 7 of the Clayton Act is ill-suited to challenge such moves, but the Sherman Act’s Rule of Reason framework offers a more viable path. Drawing on NCAA v. Board of Regents and NCAA v. Alston, this article highlights anticompetitive effects and proposes less restrictive alternatives to preserve competitive balance, market access, and fairness in collegiate sports.
Commentary
No commentary in Volume 6, Issue 1.