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Should the SEC Spin Off the Enforcement Division?

Peter J. Henning

Wayne State University Law School

Transactions: The Tennessee Journal of Business Law, Forthcoming
Wayne State University Law School Research Paper No. 09-20

The current environment is highly supportive of increased government regulation, particularly in the financial field. One of the beneficiaries of this push for greater oversight of the markets appears to be the Securities & Exchange Commission, despite some recent high profile enforcement failures, most particularly the massive Ponzi scheme undertaken by Bernie Madoff. In this essay, I raise the question whether the SEC should retain its enforcement authority over fraud cases, or whether it would be better served if that function were shifted to the Department of Justice. The SEC’s recent push to take on a more prosecutorial air gives the clear impression that an adversarial approach to enforcement of the securities laws is in order. However, the Commission must continue to solicit the views of Wall Street to fulfill its regulatory function, much like Madoff was included in the SEC’s deliberations on rules related to the stock market. At some point in the future, the push for greater regulation is likely to pass from the scene as the pendulum swings back toward a less intrusive approach to oversight. Whether the Commission can resist renewed entreaties to go easier on enforcing the law to free the capital markets from strict regulation is an open question. To allow the SEC to regulate Wall Street properly, splitting off at least a portion of the enforcement function to an agency with expertise in prosecutions - the United States Department of Justice - is at least worthy of consideration as the government looks to increase regulation.

Number of Pages in PDF File: 15

Keywords: Securities & Exchange Commission, securities fraud

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Date posted: September 11, 2009 ; Last revised: September 28, 2009

Suggested Citation

Henning, Peter J., Should the SEC Spin Off the Enforcement Division?. Transactions: The Tennessee Journal of Business Law, Forthcoming; Wayne State University Law School Research Paper No. 09-20. Available at SSRN: https://ssrn.com/abstract=1470857

Contact Information

Peter J. Henning (Contact Author)
Wayne State University Law School ( email )
471 West Palmer Ave.
Detroit, MI 48202
United States

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