Boards in Times of Change: The Challenge of Overload

At an Oxford conference on “Directors’ Responsibilities in Times of Change,” we argued that a central question is whether boards have the structural capacity necessary to deal with their ever-expanding responsibilities. The conference featured discussions about how boards today are required (or should be required) to proactively oversee human rights, geopolitics, AI bias, and cybersecurity (on top of more traditional responsibilities such as business strategy, executive pay, succession planning, and the accuracy of financial reporting). In isolation, each of these board-involvement requirements may make sense, as it aims to elevate first-order issues to the highest tier of governance, thereby reinforcing the right tone at the top.

But viewed in the aggregate, these requirements create a problem by overloading the board. And they often come at the expense of each other: if directors devote time to human rights and geopolitics, they may not have enough room on the agenda to discuss AI. And if they discuss AI to go along with geopolitics and human rights, they may neglect business strategy. 

The main challenge for boards these days is therefore how to prioritize competing demands. Our new paper, “Board Overload,” spotlights the increasing gap between expanding responsibilities and fixed capacity, analyzes how boards prioritize (often without guidance) and which issues fall through the cracks, and offers concrete policy solutions. 

The conversations during the Oxford conference highlighted three themes about this phenomenon of board overload. 

1. Board overload reflects the rise in compliance and ESG

The dramatic increase in board responsibilities is in large part a function of two major trends in corporate governance over the past decade, namely, compliance and ESG. Compliance rose into prominence in the 1990s, as more and more regulators realized that they lacked the resources to ensure that all regulated entities comply with the law. These regulators therefore started providing companies with carrots and sticks to incentivize investment in internal controls. But by the 2000s, the same regulators started realizing that too often companies’ internal controls amount to little more than cosmetic compliance: companies became adept at checking the right boxes to receive credit, without really curbing wrongdoing. 

The next step for regulators was then to demand, explicitly or implicitly, that boards of directors vouch for the seriousness of their company’s compliance efforts. The reasoning was straightforward: board involvement mandates elevate a certain issue to the highest governance tier, thereby increasing the chances of getting companies to truly buy in. Today, various regulations explicitly mandate that boards dedicate attention to a specific issue, and corporate law courts scrutinize boards that do not allocate enough time for critical issues. Our paper details many of those mounting legal demands for board involvement. 

Concurrently, a booming ESG movement has raised environmental and social issues to the top of corporate board agendas. Powerful institutional investors and social activists constantly pressure boards to incorporate ESG considerations when they design executive pay packages, pick new board members, allocate responsibilities to board committees, and communicate with shareholders. Importantly, and much like regulators, market actors do not simply demand that companies meet ESG demands; they demand that boards be actively involved and be held accountable when their company fails to meet such demands.

Boards in 2026 therefore face many more items that “must” be on the agenda relative to their predecessors in, say, 1996. Yet the capacity of boards has not grown correspondingly: A typical board still has about ten members and meets roughly eight times a year. 

2. Board overload is not a U.S.-specific issue

While most of our paper’s data points focus on large publicly traded U.S. firms, the qualitative interviews that we conducted with directors in other jurisdictions, as well as discussions with practitioners at the conference, suggested that board overload is a problem that crosses borders. If anything, it appears more size-related than country-specific: regulators and investors around the world are counting on boards to police the behavior of the country’s largest corporations across multiple domains. 

Large companies across the world are experimenting with different responses to the overload problem (some add specialist directors, others conduct more informal meetings, and so on). But a consistent theme across jurisdictions is that bottom-up solutions can only go so far. Because agenda overload is largely driven by external mandates, meaningful solutions must also come from outside the company. This brings us to the final point, about which institution is best positioned to address boards’ prioritization dilemmas. 

3. It is better to regulate board’s agenda-setting through ex-post litigation than through ex-ante regulation      

One of our policy proposals is that regulators reconsider the recent trend of mandating board involvement. Regulators should focus on telling companies what to do, instead of prescribing who within the company should do what. In some companies, it is better if the board addresses cybersecurity head-on; in others, it is better to leave it to the CISO. If regulators accept our proposal, this will not necessarily create a vacuum in oversight: corporate law courts will still be able to hold directors accountable for not dedicating agenda slots to a critical issue. In that sense, courts can act as meta-regulators of boards’ prioritization decisions. 

Unlike regulators, who demand that boards dedicate agenda slots to specific issues before a compliance violation, courts assess boards’ decisions to allocate agenda slots after the fact. The latter approach offers greater flexibility. Regulatory mandates tend to follow a one-size-fits-all approach (“the board should approve the company’s cybersecurity policy!”), which is generally not advisable when it comes to corporate governance. Courts, by contrast, evaluate the board’s prioritization against the backdrop of a specific company’s context and tradeoffs. 

Our analysis thus clarifies why a robust corporate litigation environment benefits not just society at large, but also corporate boards themselves. To use the U.S. example, the recent resurgence in Delaware oversight duty litigation did not emerge out of thin air or on account of a couple of activist judges. It was an organic response to rising regulatory and societal expectations for boards to oversee a widening set of issues. These expectations will not fade simply because corporate law courts stop scrutinizing board prioritization. On the contrary, removing private enforcement mechanisms may push regulators to respond with more one-size-fits-all mandates and direct more public enforcement actions against boards. The value of Delaware corporate law litigation lies not in making directors pay out of pocket for poor prioritization decisions (directors practically never pay out of pocket). The value is rather in providing a channel for clarifying how boards should prioritize (thereby shaping norms) and flushing out information about what boards behaved below or above the benchmark (thereby shaping reputations).

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Roy Shapira is an Associate Professor at Reichman University , a Mehrotra Visiting Professor at BU Questrom School of Business, and an ECGI Research Member.

Asaf Eckstein is a Professor of Law at Hebrew University.

Ariel Shillo is a law student at Hebrew University. 

This blog is based on a discussion held at the Intesa Sanpaolo Business Law and Regulation Conference: "Directors' responsibilities in a time of change" on 6th March 2026. Visit the event page to explore more conference-related blogs.

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