Memo to Employers: Stop Wasting Your Employees’ Money

Now that I’m a law professor, people expect me to write law review articles. There are some problems with the genre—not least its absurd citation formatting system and all the fetishism surrounding it—but it’s not a bad way to make arguments about how and why the law should change in ways that might actually help people.

That was my goal in my first law review article, “Improving Retirement Options for Employees, which recently came out in the University of Pennsylvania Journal of Business Law. The general problem is one I’ve touched on several times: many Americans are woefully underprepared for retirement, in part because of a deeply flawed “system” of employment-based retirement plans that shifts risk onto individuals and brings out the worse of everyone’s behavioral irrationalities. The specific problem I address in the article is the fact that most defined-contribution retirement plans (of which the 401(k) is the most prominent example) are stocked with expensive, actively managed mutual funds that, depending on your viewpoint, either (a) logically cannot beat the market on an expected, risk-adjusted basis or (b) overwhelmingly fail to beat the market on a risk-adjusted basis.

People in all fields often say that some outcome is bad—here, plan participants pay a weighted average of 74 basis points in expenses for their domestic stock funds, not counting the extra transaction costs incurred by actively managed funds—and say that someone should change the law. While law professors sometimes say that the solution is for Congress to pass a new statute, there are other ways of accomplishing an objective. In the paper I use a common device in the profession: I argue that including actively managed funds, in asset classes where everyone knows that index funds are cheaper and likely to do better than most active funds, may already be against the law (depending on how carefully those funds are selected). In particular, it violates the existing fiduciary duty of employers and plan trustees to invest participants’ money prudently.

The argument is moderately involved, and involves statutory and regulatory detours into such things as section 404(c) of ERISA and the corresponding safe harbor implemented by Department of Labor regulations. But the ultimate point is that plan participants should be able to sue their plan fiduciaries for breaching their duties, and courts could already rule in their favor. Since the law is admittedly not entirely clear-cut, I recommend that the Department of Labor should clarify its guidelines under ERISA (which could be done without Congressional action) to make it clear that actively managed funds create potential liability for plan fiduciaries. The likely result is that most plans would shift to index funds in order to avoid liability, investor costs would fall by about 80 percent, and, in aggregate, investors would do slightly better than before even on a gross (before fees) basis.

This change would also solve the problem of plan trustees who also happen to be mutual fund companies stuffing retirement plan investment menus with their own funds—particularly their most poor-performing funds—which is the problem I wrote about in my Atlantic column last week.

I should add that I do understand that there probably are some fund managers who can beat the market on an expected, risk-adjusted basis. I’ve seen the papers, and I’m convinced that there are more people who beat the market than can be explained by dumb luck.* (There are also far more people who trail the market than can be explained by dumb luck.) But the fact is that, in aggregate, the pursuit of “alpha” is value-destroying, whether the search is conducted by individual investors or by trustees of employer-sponsored retirement plans. The government should not be subsidizing a vast operation that wastes ordinary people’s money. Index funds would give Americans retirees more money and asset management companies less money. From a public policy perspective, that’s a good thing.

* I took empirical law and economics with Ian Ayres and John Donohue. In one class, Ian asked if any of us could think of a policy issue on which we had changed our position because of an empirical paper. Most people had trouble thinking of one. That is, if you think that the minimum wage increases unemployment, you will not be convinced otherwise by any number of papers, and vice versa. Whether there are people who can beat the market is one big issue on which I have changed my mind. I used to believe that no one could beat the market, essentially for the reasons outlined by Burton Malkiel in A Random Walk Down Wall Street. Now I think there are people who can beat the market, but they are hard to find and for most people it’s not worth trying.

This piece is cross-posted from Baseline Scenario with permission.