Table of Contents

Regulation, Deregulation, Reregulation

Regulation, Deregulation, Reregulation

Institutional Perspectives

Advances in New Institutional Analysis series

Edited by Claude Ménard and Michel Ghertman

Building on Oliver Williamson’s original analysis, the contributors introduce new ideas, different perspectives and provide tools for better understanding changes in the approach to regulation, the reform of public utilities, and the complex problems of governance. They draw largely upon a transaction cost approach, highlighting the challenges faced by major economic sectors and identifying critical flaws in prevailing views on regulation. Deeply rooted in sector analysis, the book conveys a central message of new institutional economics: that theory should be continuously confronted by facts, and reformed or revolutionized accordingly.

Chapter 11: The Sarbanes–Oxley Act at a Crossroads

Roberta Romano

Subjects: economics and finance, institutional economics


Roberta Romano INTRODUCTION The history of US federal securities regulation can best be characterized as one of gradual expansion of regulatory scope within, in essence, a disclosure regime. The regulatory approach that the landmark federal legislation of the 1930s took is one of disclosure, in contrast to the then substantive regulatory approach of most states’ securities laws, which prohibited the sale of securities not meeting state regulators’s approval. The greatest expansion thereafter occurred in the 1960s, when stock traded in the overthe-counter market and cash tender offers were brought under the federal ambit.1 But Congress periodically has revisited the scope of federal regulation, requiring, in the 1970s, public companies to maintain accurate books and records, in the wake of the revelation of US companies having made questionable payments to foreign officials,2 and increasing the sanctions against insider trading in the 1980s, after a series of high-profile cases of insider trading involving hostile takeovers.3 By the 1990s, however, the regulatory imperative took another turn, as Congress focused on class actions and enacted legislation restricting private civil litigation for securities violations.4 The Securities and Exchange Commission (‘SEC’), by contrast, has consistently increased required disclosures, action it can undertake without the need for congressional authorization. The only instances in which the SEC has cut back on its regulatory reach have occurred where it has experienced competitive pressure from other regulatory jurisdictions, such as in adoption of shelf registration rules, that sought to curb the exodus of US debt offerings into the unregulated...

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