Rethinking U.S. Investment Adviser Regulation

(Excerpt) Now, in the aftermath of Dodd-Frank’s enactment and the SEC’s associated bout of rulemaking, one might think that the Advisers Act’s regulatory regime is a workable and effective one, equipped to address—and address efficiently—the investor-protection risks that the twenty-first-century investment adviser industry produces. In fact, however, Dodd-Frank did not touch— and, indeed, Dodd-Frank’s crafters indicated no awareness of— many of the Advisers Act’s longstanding troubles. Additionally, the changes Dodd-Frank brought about have their own considerable deficiencies. As this Article contends, the U.S. investment adviser regulatory regime, now seventy-four years old, is in need of more than a few statutory amendments and new SEC rules.

For the sake of the investor-protection goals of securities regulation, the promotion of market integrity, and regulatory efficiency, U.S. investment adviser regulation needs to be rethought and reformed. Focusing both on longstanding and new regulatory weaknesses, this Article highlights five grounds for that conclusion.