• Professor William Birdthistle

    William A. Birdthistle

    Assistant Professor of Law

    – Go to his faculty biography

    – Go to his publications:

       SSRN: http://papers.ssrn.com
       Bepress: http://works.bepress.com/william_birdthistle/

    New Book by Professor William Birdthistle Critiques Mutual Funds Industry and How Americans Save for Retirement

    by  • June 29, 2016 • Scholarship • 0 Comments

    Empire of the Fund book cover artIn his new book, Empire of the Fund: The Way We Save Now (Oxford University Press 2016), Professor William Birdthistle exposes and critiques what he calls the richest and riskiest experiment in our nation’s financial history. He illustrates the flaws in the hypothesis of that experiment: that millions of ordinary, untrained, and busy citizens can successfully manage trillions of dollars in a financial system governed by powerful financial institutions.

    Professor Birdthistle explores the obstacles that individual investors face when using mutual funds to save and offers three solutions for how to safeguard their individual financial destinies as well as the nation’s fiscal strength.

    A single generation ago, many Americans enjoyed the prospects of paying for their golden years with a steady stream of income from their pension plans. Today, only 3 percent of U.S. private-sector workers are covered solely by pensions, while one-third of American households have no retirement savings at all. With the demise of pensions and the rise of 401(k) plans, Americans today will have to support themselves on the returns however high or low of their personal investment accounts.

    To protect their financial security, Professor Birdthistle argues that Americans will need “a greater understanding of mutual funds, more transparency from the financial firms that manage them, and stronger enforcement by prosecutors of the regulations that govern funds.” He proposes opening the federal Thrift Savings Plan to all Americans so they can benefit from a low-cost, well-run saving plan.

    Find out more about Empire of the Fund at the book’s website, and watch the video trailer of Professor Birdthistle introducing the book in verse.

    Introducing The Society of Investment Law

    by  • February 26, 2016 • Scholarship • 0 Comments

    CK Banner 2016

    By William Birdthistle


    Legal scholars, practitioners, and regulators of investment funds have a new learned society to encourage scholarship in their field.  The Society of Investment Law is an international organization of academics and attorneys interested in the study of legal issues relating to investors, advisers, and investment funds.  The society will host an annual meeting to promote the discussion of developments in this field.

    For the past eight years, Professors Tamar Frankel of Boston University School of Law and William Birdthistle of Chicago-Kent College of Law have co-hosted an annual roundtable discussion about developments in investment law.  Keynote speakers at those events have included Professor John Coates of Harvard Law School, reporter Daisy Maxey of the Wall Street Journal, Nell Minow of the Corporate Library, Professor Andrew Lo of the MIT Sloan School of Management, and Robert Plaze of the SEC’s Division of Investment Management.

    As an institution, the Society of Investment Law will build upon these roundtables to encourage scholarship and discussions about investment law.  The society’s founding board of directors includes Frankel, Birdthistle, Coates, and Mercer Bullard of the University of Mississippi School of Law, Quinn Curtis of the University of Virginia School of Law, Deborah DeMott of Duke University School of Law, Jennifer Taub of Vermont Law School, Dirk Zetzsche of the University of Liechtenstein, and John Morley of Yale Law School.  The inaugural officers of the society are Frankel as chair of the board, Birdthistle as president, Morley as vice president, and Taub as secretary.

    The society’s official web site is http://societyofinvestmentlaw.org.

    Birdthistle on FIFA at the Volokh Conspiracy

    by  • June 3, 2015 • Faculty Commentary • 0 Comments

    In two new guest posts at the Washington Post’s Volokh Conspiracy blog, Professor William Birdthistle unpacks the United States’ recent indictment of FIFA on charges of racketeering, bribery, money laundering, and fraud. In the first post, “Americanized football” (May 27, 2015), Prof. Birdthistle pursues the immediate questions raised by the indictment:

    Why is the United States bringing these charges? Perhaps a secret competition was held amongst international prosecutors, and we won the bidding over Qatar and Russia? No, that would never happen. Countries like the United Kingdom, Germany, and Spain might be far more likely candidates to police corruption in the game they love so much. But if they struck at King Blatter and missed, they could suffer serious reprisals from an organization that has amply proved its unprincipled style of governance. The United States may be the only country in the world both powerful enough and indifferent to soccer enough to hunt down FIFA.

    Continue reading at The Volokh Conspiracy→

    In the second post, “Burst Blatter” (June 2, 2015), Prof. Birdthistle looks at FIFA President Sepp Blatter, who was not named in the indictment but who resigned from his post this week:

    The New York Times reported Monday that a $10 million bribe for the South African World Cup had been authorized by Jérôme Valcke, Sepp’s bro-hugging number two at FIFA. FIFA, in true gangland style, immediately identified a dead person as the true perp, but documents published Tuesday showed Valcke’s name on key correspondence.

    What exactly was Valcke’s authority? FIFA said that Valcke, as secretary general, “has authority to make transactions.” But organizational by-laws, even of nonprofits, don’t typically authorize officers simply “to make transactions” — such unlimited authority would invite embezzling officers to fire off billions to a Cayman account and then disappear. Surely that couldn’t happen at FIFA, could it? Credible organizations often either specify a dollar amount up to which the person has spending authority or require a board resolution authorizing the officer to make specific payments. So perhaps Valcke made the payments without authorization or made them with Blatter’s full knowledge.

    Continue reading at The Volokh Conspiracy→

    The Dissent in SEC v. Goldman

    by  • April 20, 2010 • Faculty Commentary • 0 Comments

    By William Birdthistle


    The classic news cycle of a political story – from substance to process – appears to be taking hold of the biggest financial story of the day.  Commentators are redirecting their intense scrutiny of the SEC’s announcement of charges against Goldman Sachs toward the SEC’s decision to charge Goldman Sachs.  The turning point from text to metatext in this story occurred with Bloomberg’s report that the Commission split 3-2, when the two Republican appointees – Kathleen Casey and Troy Paredes – dissented from the Commission’s decision to bring an enforcement action against Goldman.

    Anecdotally, the phenomenon of dissents from SEC decisions appears to be growing, given the number of high-profile instances in recent years.  This particular quintet of Commissioners divided along the same partisan lines (or roughly partisan lines, since Chair Mary Schapiro is technically an independent) just a few months ago on the promulgation of new rules restricting short selling and requiring climate change
    disclosure. On the enactment of new rules for money market funds earlier this year, Casey dissented alone. And, just a few years ago, Commissioners Cynthia Glassman and Paul Atkins dissented very publicly from new hedge fund regulations.

    To conclude that the SEC is becoming more political might seem attractive but somewhat odd, inasmuch as its very composition has long been explicitly divided along partisan lines.  So perhaps the SEC is simply one more political body that, like so many of our political bodies today, appears to be growing less content to disguise or cabin its political nature. (more…)

    Declaring v. Determining Victory at the Supreme Court

    by  • April 13, 2010 • Faculty Commentary • 0 Comments

    By William Birdthistle


    In the fortnight since the Supreme Court announced its decision in Jones v. Harris on March 30, 2010, the parties and the media have loudly declared victory for both sides in the dispute. In this lawsuit alleging that an investment advisor charged excessive fees for managing investors’ mutual funds, the advisory industry has claimed victory because the Supreme Court generally endorsed a legal test – the Gartenberg standard – that led to almost total success for defendants over the past twenty-five years.  Investors, on the other hand, have pointed out that the Court tweaked the Gartenberg standard to give it a far more plaintiff-friendly twist.  So, how do we tell who actually won?

    A traditional approach would be to wait for the case to be remanded, most likely all the way back to the Northern District of Illinois, and then await a subsequent verdict.  Deploying the Supreme Court’s new formula, the lower court will eventually compute a new (or old) winner.  Of course, we can reasonably predict that whichever side loses at trial might argue that a single verdict does not encompass the entirety of a new doctrine – other trials could yield other verdicts.  In this area, as it happens, the Supreme Court also just granted, vacated, and remanded a case with very similar facts to JonesGallus v. Ameriprise – which emerged from the Eighth Circuit. So we have at least a very modest experimental population of two cases to watch on remand.  (And while the Seventh Circuit has been somewhat unsympathetic to plaintiffs in these and related ERISA cases involving mutual funds, the Eighth Circuit has been notably hospitable to them.) (more…)