Comments on Dorf on Law: Easterbrook, Posner, Buffett, Bogle, Behavioral Fi...

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2011-12-03T02:04:14.726-05:00

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2009-12-14T01:52:57.054-05:00

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Many thanks, Mike, so glad that you liked it. Am ...

2009-11-04T14:13:37.914-05:00

Many thanks, Mike, so glad that you liked it. Am very grateful for your two additional thoughts as well. Here are two more thoughts in response, each prompted by the same-numbered of yours:

1) Captive funds definitely do seem to constitute a species of horse of a different color in the sense that you say. And this fact underwrites both one thrust of Judge Posner's dissent, and the claim by plaintiff that fees charged indepedent funds advised by the same investment advisor should be employed as the base of comparison. It's pretty surprising, in my estimation, how cavalier Judge Easterbrook, and Justices Roberts and Scalia, seemed to be in suggesting that large numbers of firms of the same species sufficed to discredit any worry about excessive fees. Where the very DNA of the species in question -- in this case, the structure of the advisor/captive-fund relation -- is what occasions the concern, it simply won't do to say there are many specimens; indeed it is merely to offer a non sequitur. That said, had these jurists focussed their critique on the fact that there are sizable numbers of index funds that charge lower fees than do, say, the Oakmark funds, there would at least have been more prima facie plausibility in the argument from numbers. There would remain all the usual behavioral finance objections, but at least the assertion of competition on fees would have color, and would be amenable to more careful empirical comparison.

2) It's great to be reminded here about the ongoing disagreement between Justices Scalia and Stevens that you mention as well -- many thanks. Your observation here also prompts me to draw out more fully something I only hint at in the post, which is that Section 36(b)'s and Gartenberg's effective "totality of circumstances" approach to the excessive fees question is such as to allow Judge Easterbrook's "market" focus to be incorporated into the test in its considering at least one relevant circumstance. And some such prospect seems to have lurked in the background of some of the colloqy before SCOTUS. Of course, the very capaciousness of 36(b) and Gartenberg is what renders it "meaningless" in Scalia's eyes, but in fact the breadth here would constitute "meaninglessness" only if judges were very simple machines incapable of interpreting broadly stated guidelines in keeping with the principles they're meant to vindicate. (Side note: Easterbrook says at one point in the panel opinion that Congress enacts statutes, not intentions. Wonder who he was cozying-up to there!) In fact it is clear enough what sorts of circumstances would be such as to raise reasonable doubt that fees are truly independently bargained for, and it's just as clear that clever finance folk devise *new* such "relevant circumstances" all of the time -- which is precisely *why* corporate and finance-regulatory law *often* are couched in broad principle rather than narrow rule terms. There's a very good reason you never find Scalians on the Delaware Court of Chancery, for example; and it is that, were there to be, there would be virtually no law contouring financial practice at all.

Thanks again!

Bob

Hello It's very interesting. I'm to México...

2009-11-03T23:37:41.071-05:00

Hello
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Thanks much for this ripping yarn, Bob. Herewith ...

2009-11-03T21:10:17.848-05:00

Thanks much for this ripping yarn, Bob. Herewith 2 thoughts:

1) In some cases in which plaintiffs are complaining about a defendant's conduct that, according to orthodox economic theory, should not occur, it is at least defensible to require substantial proof by the plaintiff. Antitrust complaints about "dumping" to increase market share may fall into this category, although even then, the right approach is to allow the plaintiff to go forward if he, she or it can prove the case. But here we have a horse of a very different color. The very existence of captive funds of the sort at issue in this case strongly undercuts the suggestion by CJ Roberts that one can rely on the market sophistication of investors to ferret out the high-fee firms.

2) Whether the court endorses some version of the Gartenberg approach may depend on who wins a long-running disagreement between Justices Stevens and Scalia. In a variety of contexts, Justice Stevens has said that the fact that a legal standard has been stable in the lower courts is itself a good reason to adopt that standard. Partly this reflects a kind of deference to judges with more experience in such matters (as is surely true of the 2nd Circuit relative to SCOTUS on financial matters). Partly the Stevens view reflects a sense that Congress can be taken to have acquiesced in a long-stable interpretation of one of its statutes. Scalia, as a self-professed textualist, generally gives no such weight to lower court practice.