There is a growing asymmetry between boards’ expanded responsibilities and the structural limits on their capacity. Over the past two decades, regulators have increasingly required boards to oversee compliance across a wide range of issues.

In response to the early-2000s accounting scandals, the Sarbanes–Oxley Act tasked boards with active oversight of financial reporting. After 9/11, regulators required bank directors to adopt and oversee their bank’s anti-money-laundering policies. The 2008 financial crisis brought on new mandates for bank boards to monitor capital adequacy on an ongoing basis. In the wake of the mid-2010s cyberattacks, financial regulators began insisting on board involvement in data security. Health regulators, following a series of Medicare fraud scandals, required hospital boards to formally approve credentialing criteria as a condition for participating in Medicare. Most recently, concerns about climate change have led international regulators to require that boards oversee and disclose their company’s climate-related risks and strategies.

In isolation, each board involvement mandate makes sense, as it is intended to elevate a first-order issue to the highest levels of governance and ensure firm-wide buy-in. But taken together, these mandates create a problem of board overload. A typical board has ten members and meets eight times a year. Directors’ time and attention are finite, as is space on the meeting agenda. Requiring boards to address all these regulatory issues—on top of core board responsibilities like executive pay and succession planning, and emerging concerns such as AI bias—may stretch boards beyond their practical capacity.

The biggest challenge for boards today is therefore how to prioritize. Boards must triage competing responsibilities, often without clear guidance on tradeoffs.

In a new paper (forthcoming in Washington University Law Review), we analyze the causes and consequences of such board overload, and offer concrete policy implications.

We start by documenting the increasing gap between items that “must” appear on the board’s agenda and the number of available agenda slots. In addition to the steady expansion of regulatory mandates, fiduciary duty expectations and reputational pressures on boards have intensified over the past decade. Yet board capacity has remained relatively fixed. For example, the median size of boards has held steady at around ten members, and the average number of annual meetings has remained at roughly eight.

We then identify two distinct but related consequences of board overload. Existing analyses tend to focus on the individual director level. Directors of large companies are expected to read hundreds of pages of dense pre-meeting materials and to offer meaningful input on complex, wide-ranging topics (from AI to geopolitics). Such obligations can overwhelm even the smartest, hardest-working director. And when directors are overwhelmed, they are more likely to rely on cognitive shortcuts and less likely to invest the time and energy needed to learn about unfamiliar issues. Such “information overload” concerns have prompted limits, for example, on “overboarding” (the number of board seats an individual may hold).

From our perspective, however, the more pressing constraint lies at the group level: agenda overload. In other words, the binding constraint on board effectiveness today is not the availability of information or the bandwidth of any individual director, but the board’s collective attention: its capacity to devote shared, high-quality deliberation to a given issue. Boards are often reluctant to deprioritize issues that are highly salient or legally mandated, even when doing so would enhance board effectiveness. As a result, boards may underinvest in issues that are critical for long-term corporate success (such as strategic foresight) or for broader societal outcomes (such as product safety or environmental risk).

Before turning to policy solutions, we consider the steps boards can take on their own, such as adding directors, increasing meeting frequency, creating new committees, appointing specialist directors, or deploying AI-based monitoring. While these measures may help boards process individual complex responsibilities more effectively, they fall short of addressing the challenge of prioritizing competing responsibilities. In short, firm-level responses can mitigate information overload but not agenda overload. Because agenda overload is largely driven by external mandates, meaningful solutions must also come from outside the company.

For regulators, our central proposal is to reconsider the newfound approach of mandating board involvement. Regulators should focus on what companies must do (“reduce carbon emissions by 2030,” “safeguard user privacy”), instead of prescribing who within the company must perform specific tasks (“boards should approve the user privacy policy and the CISO should report quarterly to the board”).

For courts, recognizing board overload carries two key implications. First, courts should (and already do, in fact) apply high materiality thresholds when evaluating oversight claims, thereby preserving directors’ discretion to decide which issues make it to the full-board agenda. Second, overload is reshaping board dynamics in ways that require courts to rethink even doctrines that are nominally procedural. Boards now conduct more work between formal meetings through informal communications, and they depend heavily on officers and outside advisors to filter and frame the information that boards receive. These shifts make it essential to reinterpret doctrines such as shareholder inspection rights in ways that allow shareholders to examine not only formal board minutes, but also informal communications and the conduct of the officers and advisors who shape the board’s understanding of compliance risks.

To be sure, our claims should be taken with due caution. The phenomenon we highlight—board overload—is evolving, and it is possible that companies will, in time, develop more effective strategies to deal with it. But even if boards do rise to meet that challenge—for example, by shifting toward more continuous year-round work—the consequences would be far-reaching: boards would cease to be bodies that keep their “noses in but fingers out,” and would instead drift toward becoming shadow management teams. This only underscores the need for further research on the causes and consequences of board overload.

The full article is available for download here.