In order to set the stage for the discussion of this Article’s proposal, this Article first examines the legislative history of the Securities Exchange Act of 1934 and the Investment Advisers Act of 1940, and second, the judicial history of both. The circumstances in which each Act was formed explain why the Acts were initially distinct and inform the discussion of why those distinctions are no longer applicable. Next, this Article examines how the SEC has attempted to deal with the blurring of the distinctions in a way that would permit the financial professionals to offer various advice models to clients. By ensuring that there remain definable distinctions between brokers and investment advisers, the courts have further blurred the landscape.
Next this Article examines Congress’s attempt to deal with this blurring of roles, and the effect Dodd-Frank has had on this landscape. It will explore the Study conducted by the SEC pursuant to Dodd-Frank and the recommendations made by the staff of the SEC. Lastly, this Article will describe a proposal for a new securities act, which would modify the existing legislation in such a way to eliminate the artificial distinctions between brokers and investment advisers.