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.
Academic and market interest in environmental, social, and governance (ESG) investing has grown markedly in recent years. Although less prominent, a...
As our nation emerges from the shadow of COVID-19, the general public is coming to grips with a stark reality looming over our public schools...
Large language models (LLMs) now perform extremely well on many natural language processing tasks. Their ability to convert legal texts to data may...
Anyone who studies trade secret law in depth knows that the field is complex and nuanced. That complexity can be intimidating to novices. Accordingly...
Anyone who studies patent law in depth knows that the field is complex and nuanced. That complexity can be intimidating to novices. Accordingly, the...
There have been many many, many proposals to use Russia’s frozen assets to help Ukraine. Russia’s invasion violated international law; reparations are...
After several years of dramatic growth, ESG investing seems to have entered a period of retrenchment. While it is impossible to predict the future...
This chapter provides an overview of computational text analysis techniques used to study judicial behavior and decision-making. As legal texts become...
Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes...
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...
Although ethical critiques of markets are longstanding, modern academic debates about the “moral limits of markets” (MLM) tend to be fairly limited in...
This Article introduces the Jurist-Derived Judicial Ideology Scores (JuDJIS), an expert-sourced measure of judicial traits that can locate nearly...
Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several...
National constitutions codify provisions on a wide range of topics, ranging from presidential term limits to the country’s flag. But are all...
Consequential damages have been a cornerstone of contract doctrine since the broken crankshaft in Hadley v. Baxendale. And the Hadley rule is one of...
The number of law firm partners who identify as women has more than doubled since 1993. Will these gender parity advances regress as employers curb...
Computational analysis techniques are transforming empirical legal scholarship. Two paradigms have emerged: law-as-code, which seeks to represent...