Proxy Access Meets Private Ordering

Despite the invalidation of the Securities and Exchange Commission’s proxy access rule last summer, many companies are considering, or are being forced to consider, adoption of proxy access bylaws. This is what many academics are wont to call “private ordering”.

I’ve seen a number of recommendations concerning proxy access bylaws – whether they should be adopted, what they should say, etc. The sub silentio assumption is that these bylaws are legal. But are they?