U.S. neo-liberal financial regulatory path behind the failure (on) - to defeat the laws of the United States securities regulators and political causes of Analysis Perspective

Keywords: regulatory failure / anti-regulatory myths / risk aversion / trickery of the dispute / revolving door effect / "frozen period" rules

Summary: July 21, 2010, known as the American "Great Depression" has been the most severe financial reform bill - <<Dodd - Frank Wall Street Reform and Consumer Protection Act>>, signed by President Obama into effect after it marked the opening of the United States since pArted ways with the neo-liberal path of financial regulation. U.S. regulators to tighten sharply scale, the reason can be lost in the SEC's supervision of securities markets to find some shadow. draw SEC supervisory failures, China's securities regulators need out of the only "America" ​​myth of Marxism, keep control of the base value, improve the "frozen period" rules to reduce erosion of nepotism on regulatory performance, discipline and supervision of the rational allocation of resources to alleviate the negative trend of Law enforcement stretched .



After more than a year in the political game and the interests of compromise, the July 15, 2010, known as the American "Great Depression" has been the most severe financial reform bill - <<Dodd - Frank Wall Street Reform and Consumer Protection Bill>> [1] in the U.S. Senate by 60 votes in favor and 39 votes against the vote passed. up to 1279 the financial reform bill, marked the completion of a period of nearly two years of financial reform legislation, and thus opening the split with the neo-liberal path of financial regulation. U.S. regulators to tighten sharply scale, the reason the stock market regulators from the SEC to find some shadow of defeat in this paper attempts to analyze this perspective, analysis of the United States to abandon neo-liberalism financial supervision of legal and political causes of the path.

A, SEC history's most frustrated birthday

Historically, the SEC (Securities Exchange Commission, said the SEC has always been under the supervision of one of America's best known to the world renowned for its monitoring of the effectiveness of SEC employees are proud, but also win the trust of investors, SEC The largest capital since its inception in 1934, SEC after the market changing for many years after, in June 2009, ushered in its 75-year-old's birthday, but this time, both its own reputation or the market effectiveness of its regulatory trust, have fallen to record lows. If we say that the early 20th century Enron and WorldCom fraud scandals, making the haze hovering in the public mind a long time failed to disperse, the United States since 2008, gloomy stock market-like changes, the makes it almost collapse of confidence in the SEC, while one of the most criticized the SEC has been the failure of two: First, for many years in the SEC under the supervision of several giant Investment banks melting down, [2] Second , SEC inconsiderate of Bernard Madoff (Bernard L. Madoff Ponzi scheme single-handedly create multiple reports, resulting in tens of billions of dollars in domestic and foreign investors lost, resulting in an adverse international effects. [3]

I visit an undergraduate at Yale University, was October 27, 2009 with the U.S. SEC Inspector General David Coates (David Kotz has a private meeting, he referred to himself in the investigation of shaking Bernard Madoff When fraud, and Madoff has the following dialogue: "When people ask you, why no matter how volatile the market, you can ensure that their funds under management stable returns, how do you answer?" "I said, that there are so few Some people, God will give them inspiration for buying and selling stocks, they know when to buy, when to sell ... "

This answer Qi absurd! But actually no one questioned as the Nasdaq Stock Market's former board chairman, Madoff aura enveloped the head cover everything. More ridiculous is, was sentenced to 150 years in prison in prison admitted Madoff, SEC only need to do some simple investigation will expose their pediatrician as timely a "Ponzi scheme." or even twice, Madoff themselves that should be finished: The first time was in 2004, the SEC investigators he thought will certainly be Check the account of his delivery, but he is very "shocked" to discover that investigators actually did not. He thought it might be their position in the Industry to help him escape unharmed, the second was a Friday afternoon in 2006, SEC investigators did ask their delivery account number, when he convinced his crime next Monday will be completely exposed, however, actually nothing has happened. Madoff once again managed to escape, but the adverse consequences but it is tens of billions of huge losses and thousands of families into misery. [4]

What is the driving force behind will always be regarded as a model of the U.S. securities regulator SEC, into the abyss of the much blame? This has always been administrative supervision of the elite and leaders claim to the agency, its lost face behind what hidden the kind of political and legal logic? SEC's regulatory failure, to bring China's securities regulators how the lessons learned?

In a fundamental sense, beat the SEC, in fact, is the SEC itself. SEC in its regulatory failure, into a source of "anti-regulation" of the myth, to its original regulatory live on the opposite.

Two, SEC into the "anti-regulation" of the myth of Economics

In recent years, "big" capital market is equivalent to enhance the market competitiveness of the myth, so prevalent in the SEC to comply with the 1980s "anti-regulation" ideology, the lifting of many intended to protect investors and enhance market integrity initiatives, even once abandoned the regulatory position, however, opened the history of the SEC, demanding regulation is the SEC winning reputation and status of housekeeping skills.'s sort of this history helps to clarify the SEC in recent years lost path.

(One from the beginning of the birth, SEC is the regulatory and settle down with harsh

The irony is that America's current Economic and stock market conditions, with the SEC when the birth is quite similar to the 1929 Great Depression and its aftermath, making the New York Stock Exchange's market capitalization had fallen by 83% .1934 years, the U.S. economy into the lowest point in history, representing 25% of the total population of 13 million unemployed. [5] Although the United States in early 2009 with the Economic situation is still not as bad as the situation in 1934, but its stock market has dropped out of the first decade of the cumulative increase in unemployment, the company earnings fell sharply, its the same situation is worrying.

History is always Mirroring. That time, the United States in 1934 <<Securities Exchange Act of>> the makers keen to discover, protect investors and the Economic health of a close relationship exists between. Thus, in 1934 <<Securities and Exchange France>> in the introduction at the outset that "excessive speculation" affecting the country's wealth, the result is "The federal government paid a huge cost to pay for the country's credit." [6] is the implementation of the Act established the federal SEC the position of the Securities Act and it's first president, Joseph Kennedy (Joseph Kennedy Franklin D. Roosevelt (Franklin D.Roosevelt1932 presidential campaign, when supporters of one of the few businesses, however, as Joseph Kennedy in the 1920s and 1930s engaged in a lot of speculative trading, the appointment of President Roosevelt brought great controversy. Joseph Kennedy, a Cabinet member as the notorious "stock market speculators." [7] to face the accusations, Roosevelt responded said, "Let the thief to thief it." [8] Later, so many people are unsuccessful, Joseph Kennedy became a diligence, and vigorously SEC Chairman under his leadership, SEC recruiting two future Supreme Court Justice William, O. Douglas (William O. Douglas and his assistant Abel Furtado (Abe Forta). [9] as a professor at Yale Law School, Douglas was the most financial companies authoritative scholars, one of his strong-willed, intelligent and political acumen .1937 year, President Roosevelt appointed Douglas to SEC [10] Although Douglas is only nineteen months in office, it is still remarkable contribution through his 1938's < <Ma Longni method>> (Maloney Act created the National Association of Securities Dealers (NASD, [11] implementation of the counter market supervision, and enactment of the Public Company Accounting and financial criteria in its term in office, the New York Stock Exchange (NYSE, Richard Whitney, former Chairman (RichardWhitney) due to occupation of the Exchange Fund to support the stock of a deceased member's widow and children being prosecuted. [12]

In the process of dealing with the case, Douglas held a hearing by the SEC will find a lot of Taiyuan Stock Exchange well aware of the theft, but nothing, so Douglas Whitney scandal as an opportunity for the New York Stock Exchange The governance structure of a radical reform, forcing the stock exchange to introduce a large number of professionals. The system was fixed and widely used in all other securities self-regulatory bodies [13 when Douglas went to the Supreme Court left the SEC office [14] after its successor Zheluo Mu Frank (Jerome Frank of the New Deal's supporters, on the <<Securities Exchange Act of>> the protection of investors beliefs prevailing belief. [15] According to reports at the time when brokers, underwriters and Lawyers' complaint proceedings red tape (red tape, rules ambiguous, Frank first consideration is how to make 10 million small investors the right to relief from the unnecessary barriers and obstacles trouble. "[16]

(Two born during World War II's most important provisions of the Securities Act and the securities regulators of post-war revival

History has its chance. With the approaching World War II, the U.S. government engaged in war, SEC are increasingly marginalized, its power is gradually reduced. Pearl Harbor, the United States declared war on Japan, the securities regulatory aside .1942 years, SEC Philadelphia even forced relocation to Washington and the war in other sectors directly related to free up more space, until three years after the end of World War II in 1948, it finally moved back to Washington.

The irony is that it is in the SEC "in exile" in Philadelphia during the birth of American history's most important securities Law provisions .1942 May, SEC regional office in Boston found that a company president to the shareholders without disclosure of corporate information to improve the financial situation of this case, from shareholders to buy the stock, based in Philadelphia, the headquArters of the SEC Lawyers, found that <<the Securities Exchange Act of>> actually can not be found in the corresponding provisions to prevent this fraudulent purchases, although the "Securities Exchange Act>> of 10 (b) rules to create the beginning, trying to regulate fraud in general, but the lack of detailed implementation rules. SEC named in a secret Erdun Fu Freeman (Milton Freeman of the young lawyer, quickly drafted a brief rules to prohibit the sale of securities fraud, he will submit the draft to the SEC's five commissioners, who just fling the draft Wang Zhuoshang directly said "No problem, we support." one of the members is straightforward: "Yes, we are opposed to fraud, is not it?" On that day, the sun has not yet sets and, 10b-5 rule which has become the law. [17] In 1946, a federal district court ruled that, for 10b-5 constitutes a direct violation of the rules to bring private lawsuits basis [18]

Described as "unintentional positive outcomes." During the war years, people casually by the securities regulatory rules, actually suffered the SEC and the majority of the most important investor fraud law enforcement tool.

SEC lengthy history of "sleeping period", in 1961 to an end. Sri Lanka, the United States President John F. Kennedy appointed professor at Columbia University, William L · Gary (William L. Cary) with the SEC Chairman of the SEC's history quite Research Joel Russell Krugman (Joel Seligman, said Gary "renaissance" of the SEC. Shortly after its appointment, Gary obtained from Congress a special appropriation, regulation of securities market performance for as long as two in-depth study, and in 1963 released a Research report, Ying Chuan  which led to a number of key changes, including the legal provisions adopted in 1964, the stock traded over the counter market, the company, but also in securities such as stocks Exchange traded companies that follow the same disclosure requirements of the protection of investors, measures to rapidly expand the size of the stock market. In addition, the 1971 establishment of the Nasdaq market, for those over the counter market transactions stock provides electronic trading platform, the New York Stock Exchange to form a strong challenge in Gary and William L · under the leadership of the subsequent successor, SEC complete other critical law enforcement and regulatory changes in 1961, Cady Roberts & Co case, [20] SEC for the first time held that a public stock market brokerage firm on behalf of its customers use non-public information to trade, contrary to the 10b-5 rules of this landmark ruling, laid the future insider trading The basic regulatory framework to follow Cady Roberts case of common sense logic, the U.S. Second Circuit Court in SEC v.Texas Gulf Sulphur Co.'s case found that people within the company's abuse of insider information, constitute the rule 10b-5 under responsibility.

In addition, SEC use <<Securities Act "amendment in 1975, given permission, to promote the establishment of a national securities market .20 1960s, 1970s and early 1980s, SEC rules by issuing a series of integration of various law provisions on information disclosure fragmented, thus simplifying the disclosure rules and reduce regulatory costs for the company. [21]

(Three big market myth obscured the SEC's regulatory vision

SEC combing some ups and downs in history we can see that, since 1934 <<Securities Exchange Act of>> enacted until the 1970s, it is widely accepted view is still against securities fraud and market manipulation is not only to protect the investors, and conducive to healthy Economic development as the United States Supreme Court in 1979 said, "to protect investors, though not the only goal of the Securities Act of Congress ... but that regulate the securities market to help Economic recovery." [22] which see, in the eyes of Congress and the Supreme Court, effective securities regulation helps rather than harmful to economic growth.

However, stArting from the 1980s, the situation has changed. SEC officials not only do not think some of securities regulation is an important foundation for healthy economic development, but it as an economic development constraints. SEC has largely abandoned positive regulator of its position, [23] but more and more to cater to the idea of ​​deregulation [24] Chicago "laissez faire" (laissez-faire school aims to provide a legitimacy footnote: (1 is not only not necessary to regulate the market , even harmful, because the best way is to self-discipline, (2 mandatory corporate disclosure is unnecessary because the company's profit-driven enough to power to make accurate disclosure, [25] (three pairs to manipulate the market the conduct of regulation is futile, because so far, market manipulation is still just a myth. [26] Others believe that commercial banks engaged in Investment banking moral hazard point of view, the same is just a myth. [27]

Is not difficult to imagine that Wall Street will be the "anti-regulation" regarded as a model theory, because this view is nothing to fear in Investment banking, endlessly, from government censure to the pursuit of profit, provide a justification in 1987 were for <<Wall Street>> (Wall Street's movie, a fictional financial people 士戈登盖葛 (Gordon Gekko actually openly declared that "greed is good" (greed is good, this unrestrained attitude to Wall Street reflected most vividly.

At the same time, SEC officials repeatedly said that the Chinese Lovell Street and corporate executives convey a subtle message: SEC will not be too harsh to perform its regulatory duties. 2004, SEC member Paul Atkins (Paul Atkins In the United States Association of Securities Dealers said the speech "in the Great Depression, the government actively involved in stock market behavior, lengthening the period of the Great Depression" and "Wall Street has become a scapegoat for the deteriorating U.S. economy." [28] times years, SEC Chairman Christopher Cox (Christopher Cox in Economics club statement, quoted Federal Reserve Chairman Alan Greenspan (Alan Greenspan as saying that "the best way to protect investors, the economy is booming and the stock market "and said" SEC made - or for our country should do, is to help create an environment to promote economic growth ... ... In other words, if economic growth does not burst the bubble, not going to fix it . "[29] Thus, SEC Chairman Christopher Cox to pursue the inaction of the regulatory policy, unless there was significant fraud to report in to the speech made by Industry groups, SEC members who will raise as the SEC's three One of the goals, the other two goals were to protect investors and maintain fair and efficient market. [30] If the SEC investor protection is one of the three major objectives independent of each other, we can logically conclude that: SEC can reduce the controls to better play fund-raising function, however, this view was constituted in 1934 with the <<Securities Exchange Act of>> the basis of the philosophy of the opposite: to curb fraud, maintain fair and orderly market, ensure honesty and disclosure, capital market to play the cornerstone of fund-raising function.

However, in the past two or three decades, the prevalence of the government (including the SEC's anti-regulation ideas, get support from academic theory. SEC's focus has shifted from the protection of investors, companies and under its supervision to protect Investment banks, as two senior commentators have called: "To protect investors from financial looters set against the SEC, to some extent fallen into the hands of political power with financial protection against looters investors 'intrusion'. "[31] In recent years, SEC exempted securities brokerage business for Investment banks the minimum capital requirement, [32] removed to prevent market manipulation of short-term securities trading rules, [33] also for shareholders to use proxy voting mechanism set up obstacles, and constantly urged the Supreme Court limits investors through private litigation to compensate for their losses, these are the SEC into a telling example of negative regulation.

On the one hand, the fall in the "anti-regulation ideas" is the SEC regulation loss of the fundamental crux of the position; the other hand, SEC regulation of the blind pursuit of GDP, is regulated at the technical level to complete alienation.

Three, SEC of "law enforcement digital performance," the pursuit of erosion of the regulatory core values

SEC by the large number of very capable, very high professional level staff, most of them lawyers. [34] Many of them had to practice in a highly competitive private sector (mainly law firms, as well as some from Investment banks, and has made great success, which makes almost no SEC officials alleged corrupt practices, nor for corruption and favoritism motives, the fundamental reason is that officials of corrupt practices will greatly reduce the mobility of their career resulted in high costs.

Because of this, it is quite difficult to understand is that crack-studded SEC, the regulatory performance are facing so many accusations? And transmigration in a crisis among its regulatory why not see improvement in signs? Scrutinized under , the fundamental problem is not that there is corruption involved SEC and other bad bureaucracy, and in the administrative system of the driving force of its shortcomings.

Although the SEC elite gathered, but fundamentally, government officials are human beings, their actions are the effects of various incentives that officials value the prospect of his practice, reputation, regulatory sites, etc. In general, Administration officials are very concerned about the Congress their supervision (because Congress controls the Administration of the budget, but also concerned about their assessment of the public, because the latter deeply influence their assessment of Congress.

On the surface, the outside of the SEC evaluation, largely based on the performance of its law enforcement agencies. [35] at the SEC's organizational structure, the importance of leading law enforcement agencies. SEC has positioned itself as "the first and main is ... ... a law enforcement agency. "[36] law enforcement agencies for law enforcement to investigate and recommend SEC on illegal units and individuals to civil penalties, and at authorized, law enforcement depArtments also on behalf of SEC proceedings against offenders. and, if necessary , the law enforcement agencies but also with the U.S. DepArtment of Justice criminal sector, to bring criminal charges against criminal suspects by law enforcement authorities understood the importance of the SEC, as the economist William Bi Zero (William Bealing pointed out, SEC law enforcement performance, the SEC's survival and to obtain funding from Congress to legalize [37]

Because the SEC is concerned about its budget, and its job performance of law enforcement agencies of the success of a pivotal SEC, SEC compliance strategy is to create a SEC through the effective use of the overall impression of congressional appropriations, thereby enhancing its attractiveness to Congress. So , SEC attaches great importance to its own enforcement actions, and the number of fines collected, making it into a number of one-sided pursuit of law enforcement quagmire difficult to extricate themselves, and thus, a series of problems.

(I caught wide SEC supervision of the financial crisis in order to win the budget

First, SEC has a strong incentive to create a look that the capital market crisis, the market mechanism can not solve the problem, SEC must assume this responsibility, which makes the SEC caught in the dilemma: on the one hand, SEC regulation must succeed who emerged on the other hand, if not the occasional financial crisis, people will think that there is no SEC. [38] Thus, the SEC, the best way to balance is to be attributed all or part of these crises regulatory resources The lack of since the collapse of Enron since 2001, SEC has successfully used this strategy, claiming that "inability to pay adequate salaries to employees," which led to "an employee shortage." [39] Thus, since the collapse of Enron in 2001 , SEC employees budget in 2002 and 2003 increased significantly. In fact, from 2001 to 2004, SEC's financial allocation rose from $ 422,000,000 to $ 913,000,000, more than tripled, and, In 2003 and 2004, SEC is the federal government a substantial increase in the budget to be the only sector [40]

The crisis also led to the SEC to pay employees a substantial increase in early .2002, SEC Lord Harvey L. Pitt (Harvey L. Pitt claimed in testimony before Congress, as compensation of employees is low, SEC can not afford the post-Enron era of regulatory responsibility. Reach out to Congress and thus SEC to require more than $ 91 million allocation to hire 100 more lawyers and accountants [41] that year, SEC employees' salaries or ranking federal government departments first, the direct cause of 2002 Congress enacted the <<Pay Equity Act>> (Pay Parity Act, the SEC employee's pay to the Federal Reserve Board employees the same level [42]

For a lot of oversight on the accusations of fraud, SEC enforcement resources to the grounds of insufficient self-justify, however, this point is not without controversy, from 2000 to 2008, SEC's fiscal budget to increase by 140%, from 3.77 billion dollars to $ 906 million, the number of employees has increased by 20%, from 3235 up to 3868 people were. [43] Even if the inflation into account, SEC's financial support also has been significant growth. Another There is also solidarity, that SEC regulators charged an annual fee to the market, far exceeding its budget, for example, in 2008, SEC received a supervision fee of $ 1.15 billion, compared with its budget transferred more than 2. $ 0.9 billion. [44] However, as the Clinton Administration's SEC main 席亚瑟莱维特 (Arthur Levitt) that both the taxpayers budget, or public companies and Wall Street to pay a supervision fee, are required to properly SEC the use of regulatory resources, the timely detection of market risk, ensure that the market is running without problems. [45] and for this purpose, SEC is not doing well.

(B SEC "cherry-picking" to selective enforcement in order to win regulatory performance

In the scientific sense, to the number of enforcement actions and fines collected to evaluate the SEC, may not be the best indicators, however, because of social psychology and behavioral finance, they are "available" data, but little tend to use quantifiable data to assess things. Thus, in the Congress and the public pressure, SEC must be pursued in the number of cases and confiscation of the items, so that even if significant regulatory oversight, SEC is also often its " number of completed supervision "to absolve itself from blame.

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For example, in response to Madoff due to failure to investigate the case and was blamed when, SEC said in testimony before Congress, "the end of January 2007 to the current period compared with the same period in 2008, SEC enforcement departments to carry out more Research activities (2007 to 1290, 2008 and 1377, a formal investigation order issued by the number doubled (2007 to 143 in 2008 to 335; issued an emergency temporary injunction turn more than doubled (compared with 25 in 2007, 2008 57 ... "[46] Similarly, SEC's 2008 annual report, also emphasized the number of law enforcement and collection of fines and other easy to measure the number of indicators: 2008 SEC enforcement activities throughout the year, the number of the biggest this year, filed insider trading proceedings, the SEC is the largest in the history of the past two years, SEC's prosecution of the crime also creates a high .2008, SEC use According to <<Sarbanes - Oxley (Sarbanes-Oxley>> Fair Fund established by the Act, to the damage to investors the return of the $ 1 billion to support this unprecedented high-intensity law enforcement, is now SEC more than one-third one of the staff involved in enforcement activities of the high proportion of, the SEC over the past two decades unique. [47]

However, no matter how stressed the SEC of their hard work, unsatisfactory performance of its monitoring is an objective fact, but also, SEC has been criticized for the office is still in its highly selective law enforcement, that in the event of securities fraud and other illegal acts when, SEC more willing to sue the company rather than individuals. [48] This position allows long-term "shareholders of the company's property managers can use to 'buy' exemption, so that their get out." [49] SEC's practice, rooted on a recognition that the company as a defendant, the defendant compared to easier access to personal reconciliation, while this understanding, the number of cases with the SEC on the amount of fines collected and the pursuit of the same strain: first, the prosecution of companies easier than prosecute individuals settlement, due to the company as a defendant, to pay compensation of the company (all shareholders, rather than individual executives, and the second in the other conditions remain unchanged, the court settlement than spend less time was more, which makes the SEC to settle the case quickly in recent years the controversial SEC and U.S. banks (Bank of America settlement of cases, it is the real embodiment of this logic.

The end of 2008, Bank of America and Merrill Lynch (Merrill Lynch & Co, the "Merrill Lynch"), the merger process, to seek the support of the shareholders of the awful acquisition, Bank of America implemented a false statement. SEC alleged that in September 2008 March, Bank of America to complete the total $ 50 billion acquisition of Merrill Lynch, issued to shareholders in the solicitation of proxies for a "substantial fraud" in order to obtain shareholder approval, according to the SEC's allegations, Bank of America disclose to its shareholders, "Merrill Lynch agreed to before the end of the merger, Bank of America did not consent, Merrill Lynch executives will not pay its year-end awards, and any other form of reward." However, with this disclosure is contrary , Merrill Lynch, Bank of America agreed to pay their executives $ 5.8 billion total year-end awards - the equivalent of 12% of the total mergers and acquisitions - as well as other forms of reward. "[50] and this point, to its shareholders in the Bank of America issued the solicitation of proxies makes no mention of the end, in September 2008, Bank of America after less than 48 hours of negotiations, agreed to acquire 60% of the debt market, Merrill Lynch, and in January 2009 to complete the merger. According to the company disclosed data, in 2008 Merrill Lynch $ 27.6 billion loss, but at the end of the year prior to their executives give away over $ 3.6 billion in dividends, in January the following year before breaking the dividend practices. Thus, the accusations that Merrill Lynch high management is attempting to take away the last in a pre-merger dividend.

However, more surprising is that, for Bank of America is extremely serious misrepresentation, the defendant was indicted in the United States Bank, does not include any individual defendants, according to the SEC and Bank of America reached a settlement agreement, Bank of America do not recognize the do not deny the allegations, but only in the solicitation of proxies in its commitment not to make any false statements to the SEC to pay $ 33 million in fines.

The settlement was a joint trial the case of the United States District Court Jed Leike Fu Bangniuyuenan (Jed Rakoff the judge's strong opposition in the ruling refused to endorse the program, Judge Jed Leike Fu said, " Even if the spirit of obedience to maximize the settlement terms agreed by the parties stand, we have to believe that this settlement is neither fair nor reasonable, its legitimacy is more inadequate. "[51] Jed Lei Kefu will This program is described as follows: Bank of America shareholders of hiding $ 5.8 billion in assets, and as a bonus given to executives of Merrill Lynch, which almost brought the company its own bankruptcy now is to clean up its lie brought about by the defeat of shareholders, shareholders of Bank of America and from the hands out $ 33 million, paid to the SEC, in order to achieve settlement of cases. [52] Jed Leike Fu rejected the reconciliation program, "The first and The most fundamental "reason is that as a victim of the Bank of America shareholders, but also to actually re-pay the misconduct of senior executives," In any case, it is not in line with the most basic Justice and morality. "[53] In other words, Jed Leike Fu judge held that "damages to punish those who lie by the shareholders of Bank of America, which can not obtain legitimacy." [54] At the same time, Judge Jed Leike Fu outspoken, full of the settlement a conflict of interest: "the allegations by the executives who lied to by the decision of the shareholders as a victim should seek out how much money is reconciliation, which is obviously not part of the management rights company executives." [55]

For in this case played an inglorious role in the SEC, can be described as trenchant criticism Jed Leike Fu: The awful reconciliation program, SEC deep conflicts of interest: SEC to rush quickly through reconciliation to establish the image of law enforcement, while want to cut the Gordian knot, to help the U.S. bank executives to escape embarrassing accusations. And all of this, by the shareholders to pay. "[56]

If, SEC's selective enforcement of injury is the case in the interests of investors, the SEC deep custody dispute surgery, erosion of regulatory resources and operational capacity, it is a large area of ​​damaged the interests of investors.





Notes:
[1] The English name of the bill for the "Dodd-Frank Wall Street Reform and Consumer Protection Act".

[2] March 16, 2008, the fifth largest U.S. Investment bank Bear Stearns (Bear Stern by JP Morgan Chase (JP Morgan Chase acquisition, the Wall Street panic, the same year on September 15, the fourth-largest Investment bank Lehman Brothers (Lehman Brothers to the United States Bankruptcy Court for bankruptcy protection, the third largest Investment bank Merrill Lynch (Merrill Lynch by Bank of America (Bank of America acquired century-old once disintegrated, the speed of its demise, startling September 21, .2008 Japan, the only remaining two Investment banks Goldman Sachs (Goldman Sachs and Morgan Stanley (Morgan Stanley transformed into bank holding companies. At this point, a year-long chaos of the U.S. real estate "subprime" financial crisis, and finally evolved into a world-shaking "Wall Street financial crisis." Since then, the U.S. Congress after a heated debate, by $ 850 billion bailout plan. Some analysts believe that the end of 2008 when the United States has owed $ 55 trillion of debt. This astronomical like debt, making the average American will be in debt $ 180,000. the United States "to taxpayer money pay for the greed of Wall Street," the controversy has yet to subside, countries have been forced to take action to respond to this unprecedented financial disaster cited Luopei New: <<U.S. financial regulatory law and policy dilemma of reflection - and China's financial supervision and the inspiration>> set <<China Law "2009 3.

[3] Diana B. Henriques & Jack Healy, Madoff Goes to Jail After Guilty Pleas, New York Times, 2009 年 3 13, No. A1 version.

[4] a more detailed analysis, see Luopei New: <<out of the corporate governance of the CD, "United States" doctrine myth>> set <<Central Europe Business Review>> December 2009.

[5] Frederick E. Hosen, The Great Depression and the New Deal 257 (McFarland & Co., Inc.1992.

[6] Exchange Act, § 2,15 U. S. C. § 78b (2006.

[7] Joel Seligman, the Transformation of Wall Street: A History of the Securities and Exchange Commission and Modern Corporate Finance 105 (The Maple Press Co., 2nd ed.1982).

[8] which read "Set a thief to catch a thief". Kenneth S. Davis: The New Deal Years 1933-37,369 (Random House, Inc.1979.

[9] Supra note [7], Joel Seligman, p. 105.

[10] Supra note [7], Joel Seligman, p. 110.

[11] Now the name change for the financial Industry Authority (Financial Industry Regulatory Authority, or FINRA.

[12] John Kenneth Galbraith, The Great Crash :1929,166-72 (Mariner Books 1955.

[13] Supra note [11].

[14] Douglas from 1939 to 1975 served the Supreme Court, is by far the longest-serving judge. See U.S. Supreme Court web site http://www. supremecourtus. gov / about / members. pdf. December 2009, 20 Last visit.

[15] Frank, Law and the Modern Mind (1930, author of the book is a symbol of 20th century literature of legal thought in two years as chairman of the SEC, Frank was appointed to the U.S. Second Circuit Court of Appeals judge.

[16] Government: Intellectual on the Spot, Time Magazine, 1940 年 3 月 11 日, http://www. time. com/time/magazine/article/0 ,9171,789708-6, 00. html, 2010 年 1 月 24 Last Visit.

[17] Hamilton • Freeman (Milton Freeman tells this story. Colloquium: Foreword, 61 Fordham Law Reivew, 1 (1993.

[18] Kardon v. National Gypsum Co. , 69 F. Supp. 512,514 (E.D.Pa.1946.

[19] Report of Special Study of securities markets of the Securities and Exchange Commission, H. R. DOC. NO. 88-95 (1963.

[20] See Cady, Roberts & Co. , 40 S. E. C. 907 (1961.

[21] For example, SEC by Regulations S-K, 17 CFR § 229 (non-financial information and the S-X, 17 CFR § 210 (financial information, thus unifying the disclosure rules, to simplify the disclosure process.

[22] Michael Lewis & David Einhorn, The End of the Financial World As We Know It, New York Times, 2009 年 1 4 March.

[23] However, in the two-term SEC Chairman Arthur Levitt (1993-2001 and William Donaldson (2003-2005, under the leadership, SEC does take over an important regulatory initiatives, including the introduction of the FD rules (Regulation FD (related to the company's disclosure and NMS rules (relating to the national market system. See U. S. Securities and Exchange Commission, Historical Summary: Past Chairmen and Commissioners, http://www.sec.gov/about/sechistori-calsummary.htm, 2009 年 2 月13, the last visit.

[24] For example, the U.S. Food and Drug Administration for failing to effectively protect consumers and much criticism. See Lars Noah, The Little Agency that Could (Actwith Indifference to Constitutional and Statutory Strictures, 93 Cornell Law Review, 901 (2008) , Cameron Rhudy, How Congress MayHave Failed Consumers with the Food and Drug Administration Amendments Act of 2007,27 Biotechnology Law Report 99 (2008.

[25] Frank H. Easterbrook & Daniel R. Fischel,Mandatory Disclosure and the Protection of Investors,70 Vanderbilt Law Review669,682－84(1984.21世纪初安然和世通公司的丑闻弱化了此种见解.关于强制性披露信息重要性的论争,请参见Cox,Hillman＆Langevoort,Securities Regulation:Cases＆Materials 253－57(5th ed．2006．
[26]参见Paul G． Mahoney,The Stock Pools and the Securities Exchange Act,51 Journal of Finance 343(1999(作者称,认为<<证券交易法>>中的规范证券市场操纵的条款,构建于错误的假定之上,Daniel R．Fischel＆David J．Ross,Should the LawProhibit"Manipulation"in Financial Markets?,105 Harvard Law Review．503(1991．(作者认为,应当放弃"操纵市场"这一概念,因为很难对"操纵市场"下一个令人满意的定义.

[27]例如,可参见Franklin R． Edwards,The New Finance:Regulation and Financial Stability 71(1996("作者称,<<格拉斯•斯蒂格尔法>>关于防火墙的规定,对于保持银行资产的质量和金融市场的稳定,未必是事所必须的."
[28]摘自2004年10月7日SEC委员Paul S． Atkins在证券交易商协会的演讲,http://www． muckety． com/ü－S－Securities－and Exchange－Commission/5001691． muckety,2009年11月9日访问.

[29]摘自SEC主席克里斯托弗•考克斯在经济学家俱乐部上的演讲,http://news． muckety． com/2008/09/20Secs－christo-pher－cox－vows－to－finish－bush－term－despite－mccain－criticism/5141,2009年11月10日访问.

[30]摘自SEC委员Kathleen L． Casey的演讲,http://www． sec． 80v/news/speech/2008/spchl2030－8kk． htm,2009年5月15日访问.

[31]Michael Lewis＆David Einhorn,The End of the Financial World As We Know It,New York Times,2009年1月4日,第9版,http://www． nytimes． com/2009/01/04/opinion/041ewiseinhorn． html．
[32]Alternative Net Capital Requirements for Broker－Dealers That Are Part of Consolidated Supervised Entities,17 C． F. R. 240．15c3－1(2004．
[33]Regulation SHO and Rule 10a－1,17 C． F. R. 242．201(2007,参见Release No．34－55970(2007．
[34]参见Jed Horowitz,SEC Commission:We Need Fewer Lawyers and More Economists,Investment News,2009年9月24日.

[35]美国SEC下设五大部门,除了执法部门之外,还包括以下四个:⑴公司融资部,包括审核SEC的发审材料,⑵交易和市场部,以维持市场公平、有序及高效为目标,⑶投资管理部,通过对总值达26万亿的投资行业的监管,来保护个人投资者,⑷风险、战略和金融创新部,这是2009年新设的部门,"通过向SEC提供整合了经济、金融和法律专业的复杂的分析报告,来帮助识别金融市场发展变化中的风险和趋势".参见SEC网页http://sec． gov/about/whatwedo． shtml,2009年12月14日访问.

[36]前注[34].

[37]William E． Bealing,Jr． ,Actions Speak Louder than Words:An Institutional Perspective on the Securities and Exchange Commission,19 Accounting,Organizations and Society,Vo． 19 No． 7,555－567． And also see Steven M． H. Wallman,Redesigning The SEC:Does The Treasury Have A Better Idea?,95 Vanderbilt Law Review 825,832－33(2009.

[38]Jonathan Macey,Administrative Agency Obsolescence and Interest Group Formation:A Case Study of the SEC at Sixty,15Cardozo Law Review 909(1994．
[39]U． S. Securities and Exchange Commission,Pay Parity Implementation Plan and Report,2002年5月6日,http://www． sec． gov/news/studies/payparity． htm,2009年10月18日.

[40]Susan Dudley and Melinda Warren,"Regulatory Spending Soars:An Analysis of the U．S．Budget for Fiscal Years 2003 and2004,"2004 Annual Report,2004年7月,14－19,http://wc． wustl． edu/Reg_Budget_final． pdf．
[41]Jackie Spinner,SEC Seeks Money for Hiring,Raises:Pitt Says Agency Has a'Staffing Crisis,'Washington Post,2002年3月8日.

[42]Investor and Capital Markets Fee Relief Act,Public Law 107－23,§8,115 Stat． 2390,2389(2002．
[43]SEC Annual Report． 1,159(2000,SEC Annual Report．1,9(2008．
[44]SEC,Fiscal Year 2009 Congressional Justification,at 5(Feb．2008．
[45]参见Arthur Levitt,Jr． ,How the SEC Can Prevent More Madoffs,Wall Street Journal,2009年1月5日,第A13版.

[46]Robert Khuzami和John Walsh在国会就SEC未能识别麦道夫的庞氏骗局一事作证时,发表了以上观点http://www． sec． gov/news/testimony/2009/ts091009rk－jw． htm,2009年11月2日最后访问.

[47]参见SEC 2008年度报告,http://sec． gov/2008annual/SEC_2008annual_trustp2． htm． 2009年12月20日访问.

[48]See Zachary Kouwe,Judge Rejects Settlement Over Merrill Bonuses,New York Times,2009年9月14日,http://www． ny-times． com/2009/09/15/business/15bank． html?scp=1＆sq=sec%20rakoff%20settlment%20bank%20of%20america＆st=cse,2009年12月19日.

[49]参见前注[47].

[50]Securities and Exchange Commission v． Bank of America Corporation,Case 09 Civ． 6829(JSR,Memorandum Order,2009年9月14日,第2页,http://blogs．reuters．com/rolfe－winkler/files/2009/09/bofaorder914．pdf,2009年10月18日.

[51]前注[47],第2页.

[52]前注[47],第2页.

[53]前注[47],第4页.

[54]前注[47],第5页.

[55]前注[47],第7页.(<<报告>>提及,"即使这一决定属于经营管理者的决定范畴,它也应受到更为严格的司法审查,而不是像这个案件原来设想的那样".

[56]前注[47],第5页.

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