The rise of index funds has reshaped the modern American capital markets. Like mutual fund managers, indices now direct trillions of dollars of investor capital. Although it regulates mutual fund managers as investment advisers, the SEC has chosen not to treat the providers of market indices similarly. In this Article, we argue that many index providers are not merely like investment advisers; under the relevant statutory and regulatory regimes, they are investment advisers. The SEC’s failure to recognize this fact reflects an inaccurate and antiquated view of the index fund market. Having established that certain index providers are presently acting as unregulated investment advisers, we propose a regulatory solution. The SEC should create a nonexclusive, conditional safe harbor giving index providers guidance on what activities will and will not make them investment advisers. This would close the regulatory gap in a way that is consistent with the governing statutes and case law without unduly burdening market participants.
After several years of dramatic growth, ESG investing seems to have entered a period of retrenchment. While it is impossible to predict the future...
Research correlating stringency in land-use regulation to low housing supply, high housing costs, and segregation relies on surveys of planners about...
Lenders are perfectly free to decide for themselves whether, when, how, to whom and on what terms they will extend credit to a sovereign borrower. But...
This Article introduces the Jurist-Derived Judicial Ideology Scores (JuDJIS), an expert-sourced measure of judicial traits that can locate nearly...
Large language models (LLMs) now perform extremely well on many natural language processing tasks. Their ability to convert legal texts to data may...
This chapter provides an overview of computational text analysis techniques used to study judicial behavior and decision-making. As legal texts become...
We examine the legal terms in the market for green bonds, debt instruments in which proceeds are earmarked, directly or indirectly, for projects with...
Consequential damages have been a cornerstone of contract doctrine since the broken crankshaft in Hadley v. Baxendale. And the Hadley rule is one of...
In this article, we examine the relations between risk, the choice of foreign or local contract terms (parameters), and maturity in the sovereign debt...
Engaging New Cases: The book uses fresh, timely cases in agency and partnership to show how business law is relevant in a variety of practices...
In an era characterized by inequalities of income and influence, political polarization, and the segregation of social spaces, the income tax...
Over the past quarter century, Congress has enacted several major reforms for retirement plans and individual retirement accounts, usually with large...
Virginia adopted a risk assessment to help determine sentencing for sex offenders. It was incorporated as a one-way ratchet toward higher sentences...
The lawyer-client relationship is pivotal in providing access to courts. This paper presents results from a large-scale field experiment exploring how...
As social scientists seek to communicate research about what works in policing to police executives, they overlook important players in determining...
Gender equality matters in the global public law academy for at least three reasons: the production of diverse scholarship, and substantive equality...
We examine the legal terms in the market for green bonds, debt instruments in which proceeds are earmarked, directly or indirectly, for projects with...
This law school casebook provides a detailed examination of secured transactions in personal property in both the commercial and consumer context. The...