As I discussed a couple of days ago in my post about the SEC’s moves toward imposing fiduciary duties on brokers, I have a new paper on how Congress and the courts messed up fiduciary duties in another context: Federal Misgovernance of Mutual Funds. The paper is about a Supreme Court case decided last term. The Court’s opinion followed a notable disagreement in the Seventh Circuit between Judge Easterbrook, who would basically trust adviser compensation to the robust mutual fund market, and Judge Posner, who had doubts about how well that market functions. Here’s the abstract:
In Jones v. Harris Associates, the Supreme Court interpreted investment advisers’ fiduciary duty regarding compensation for services under Section 36(b) of the Investment Company Act of 1940. The Court endorsed an open-ended Second Circuit standard over a more determinate Seventh Circuit test calling only for full disclosure and no “tricks.” This paper shows that Congress created and must solve the fundamental problem the Court faced in Jones. At one level the problem stems from the existence of an investment adviser fiduciary duty as to compensation and the corporate structure from which it springs. At a deeper level lies the more basic problem of federal interference in firm governance, which lacks state corporate law’s safety valve of interstate competition and experimentation. This discussion is appropriate in light of the increasing federal role evident in the enactment of broad new financial regulation.
Here’s an earlier pre-decision post laying out some of the issues, which I concluded by noting:
I suspect that in this day and age the Supreme Court will side with Posner. Such a decision would be a symptom and signal of our sharp turn toward paternalism in everything from complex finance to corporate governance to the simplest products.
Although the Court’s result was consistent with Posner’s position, as noted here it left the deeper issues to Congress. These include questions not only about markets, but also about the appropriate federal role in structuring investment vehicles. My article suggests that, whatever the flaws in markets and state regulation, federal regulation may be worse.
