Avoiding Wasteful Competition: The Real Reason to Prohibit Insider Trading

48 Pages Posted: 11 Nov 2020

Date Written: October 26, 2020

Abstract

This Article explains why trading based on inside information should be prohibited.

The value realized by trading on inside information is unusual in two respects. First, inside information is produced at little or no incremental cost and is nevertheless quite valuable. Second, profits made from trading on inside information come largely at the expense of others. When the value of something exceeds the cost to produce it, a wasteful race to be the first to capture the resulting surplus is likely to ensue. Similarly, resources expended solely to take something of value from others are wasted from an overall social welfare perspective. Thus, both at its source and in its use inside information invites wasteful competition.

A law prohibiting insider trading is the best way to avoid this wasteful competition. Previous scholarship misses this obvious conclusion because of its reliance on one of three assumptions. First, wasteful competition is assumed to be a problem that markets can rectify. Second, private ordering solutions are assumed to be available even when market mechanisms fail to address this problem. Third, a wasteful race to acquire and use inside information is viewed as otherwise unavoidable. None of these assumptions is correct.

The findings here have immediate policy implications. First, insider trading legislation should be enacted that bans all insider trading and not just trading based on wrongfully acquired information. Second, there is no reason to require proof that a tipper received a personal benefit to prosecute someone for tipping inside information. Third, the possession and not the use of inside information should be enough to trigger a trading prohibition.

Suggested Citation

Guttentag, Michael D., Avoiding Wasteful Competition: The Real Reason to Prohibit Insider Trading (October 26, 2020). Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-27, Available at SSRN: https://ssrn.com/abstract=3719546

Michael D. Guttentag (Contact Author)

Loyola Marymount University ( email )

7900 Loyola Boulevard
Los Angeles, CA 90045
United States

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