EFTA01378447.pdf

Page 25 21 Health Matrix 189, * and articulate the ways in which a policy they support advances their personal conception of what is good and meaningful in life. That is, where the norm of public reason requires speakers to [`2113] keep quiet about their overarching "world-view" when talking about social policy, the norm of expressive over-determination demands that speakers explicitly acknowledge the connection between their policy choices and their world-view. Second, Kahan would require people to speak about a preferred policy in ways that allow other people to see the policy as "expressing meanings distinctive of their worldviews as well." ne) In order to ensure that policy proposals can be determined or justified through multiple world-views (i.e., that proposals can be "expressively overdetermined"), political speakers would be "strictly forbidden to engage in forms of advocacy calculated to render laws and policies univocal in their meanings." It may be optimistic, and perhaps patronizing, to think that controversial policy proposals can always "admit of multiple cultural interpretations." -42 It seems inevitable that some kinds of proposals will inevitably resonate more with an "individualist" rather than an "egalitarian," or vice-versa. It may be sufficient instead to tweak the second step of Kahan's prescription and say that speakers should be required to explicitly and sincerely address the ways in which their preferred policy advances their own world-view and the ways in which it at least does not unduly threaten the world views of others. Such an approach still achieves the dual benefits that Kahan seeks of first, alerting the speaker to the biased nature of her own positions, and, second, disarming her interlocutors' reasonable fears that their world view may be threatened by a policy advocated by someone with a world-view different from their own. ^-`) r2191 Kahan intends for "expressive over-determination" to be deployed in political discourse, where it will replace the norm of public reason. But his framework might be usefully installed, with alteration, as a discourse norm for corporate speech on behalf of multiple stakeholders. ^°• Instead of urging directors to appeal to world-view categories, we might insist that they speak in a manner that explicitly makes clear the ways in which a proposed course of corporate action is likely to advance shareholder interests as well as making clear the ways in which the proposal would affect other groups of stakeholders. Directors would be obliged to speak with candor in terms that resonate with the particular interests of each of the groups. For example, they might speak of risks of loss and chances of profits when expressing the shareholders stake in corporate action, wages, working conditions, and job security when speaking of the consequences of a corporate choice for workers, and cost, quality and consumption consequences when expressing the intended or likely effect of a corporate decision on the firm's consumers. ns' Firms with fiduciary obligations to multiple stakeholders might also be expected to speak in an expressively over-determined fashion when they speak to their different constituencies through advertising, disclosures, or public statements. To comply with the norm, for example, firms would be forbidden from making a statement to share 220] [' holders about the profitability of a particular course of action without also expressing to consumers how their interest is implicated in the proposed action, and also speaking to workers about how the plans would affect them. The form of such speech need not be prescribed with nuance or particularity. Certainly a prospectus sent to shareholders need not have a section directed at consumers, and general advertising to consumers need not also contain information about cost-of-living increases for workers in the next year. But For internal use only CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0075626 CONFIDENTIAL SDNY_GM_00221810 EFTA01378447