Redesigning the SEC: Does the Treasury Have a Better Idea?

58 Pages Posted: 3 Dec 2008 Last revised: 4 Mar 2010

John C. Coffee Jr.

Columbia Law School; European Corporate Governance Institute (ECGI); American Academy of Arts & Sciences

Hillary A. Sale

Washington University in St. Louis - School of Law

Date Written: November 1, 2008

Abstract

The 2008 financial crisis has necessarily raised the question of regulatory redesign. Were regulatory failures responsible to any significant degree for the insolvency of the major investment banks? Even prior to the crisis's cresting, the Treasury Department issued a Blueprint in early 2008 concluding that the regulation of financial institutions in the U.S. was overly fragmented. This paper analyses both the Treasury Department's proposals and the role of the SEC in the rapid increase of leverage at major investment banks in the 2005 to 2008 era that led to their insolvency. Finding the SEC to be more competent at consumer protection and antifraud enforcement than at prudential financial regulation, this paper supports a twin peaks model for financial regulation in preference to either a universal regulator or the U.S.'s current system of functional regulation. It disagrees, however, with the Treasury's recommendation of greater reliance on self-regulation and principles over rules, finding that deference to self-regulation was at the heart of the SEC's recent failure in the Consolidated Supervised Entity Program and provides a paradigm of when self-regulation will fail. An alternative (and more modest) proposal is also made to Treasury's proposed preemption of state securities regulation. This article will appear in the 75th Anniversary SEC Symposium in the Virginia Law Review.

JEL Classification: G21, G38

Suggested Citation

Coffee, John C. and Sale, Hillary A., Redesigning the SEC: Does the Treasury Have a Better Idea? (November 1, 2008). U Iowa Legal Studies Research Paper No. 08-51; Columbia Law and Economics Working Paper No. 342. Available at SSRN: https://ssrn.com/abstract=1309776 or http://dx.doi.org/10.2139/ssrn.1309776

John C. Coffee Jr.

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-2833 (Phone)
212-854-7946 (Fax)

European Corporate Governance Institute (ECGI)

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

American Academy of Arts & Sciences

136 Irving Street
Cambridge, MA 02138
United States

Hillary A. Sale (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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