San Diego Law Review

Document Type



The exponential rise of mutual funds designed to track stock indices has been one of the drivers behind the re-concentration of ownership of listed companies in the United States. Because of the high concentration of the passive index funds industry, the three leading passive fund managers—BlackRock, Vanguard, and State Street—make up an increasingly important component of the shareholder base of listed companies. In spite of this however, it remains questionable whether they are actually interested in playing an active role in the corporate governance of investee companies. In fact, although passive investors are, by definition, focused on the long term and, as such, should naturally be incentivized to monitor investee companies to improve their performance, passive fund managers generally adhere to a low-cost approach to voting and engagement to keep their fees low. Against this background, this Article provides an in-depth analysis of available evidence concerning the corporate governance role of passive investing and, taking the current EU institutional investor-driven corporate governance strategy as a reference, demonstrates the shortcomings of the regulatory approaches to institutional shareholder engagement focused mainly on short-termism. This Article therefore argues that, to promote more effective passive investor engagement, lawmakers, regulators, and corporate governance professionals should tackle cost-related issues more effectively. Moreover, pursuing this line of thought, it outlines an analytical framework of potential regulatory strategies aimed at reducing engagement-related costs to encourage passive index fund managers and, more generally, nonactivist institutional investors to play a more effective oversight role over investee companies.