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华东政法学院2005年博士研究生入学考试经济法学专业外语
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考试科目：经济法学专业外语 考试日期：2005年 月 日 5na~@-9p
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Read the essay carefully and finish the following two instructions in your own words, R.jIl@p
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A. Describe the national regulation framework of the U.S. securities market imposed in the 1930s in the U.S. (15%) t2/#&J]
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B. Describe the debate around whether the national regulation of the securities market imposed after 1934 make any difference. (15%) QQ%D8$k"
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REGULATION OF THE SECURITIES MARKET $G8E 3|k
There are many different interrelationships between securities markets and the law. For instance, securities are themselves contracts which create property rights. Participants in the securities markets buy and sell securities under the terms of specialized contracts. A principal concern of the law is fraud, deception and manipulation in securities markets, behavior that may be subject to private tort remedies, administrative penalties and criminal sanctions. Private organizations such as exchanges play an important role in organizing securities markets and regulating their participants. Securities markets are subject to some level of supervision and control by a public office or commission. The contract rights traded on securities markets may be issued by public or private bodies, or they may simply be, as is the case for exchange, traded derivatives, obligations of the exchange clearing house itself. ) U~=P f"
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Securities regulation is understood as a field of public law that cuts across every aspect of the securities industry. Issues that in another industry would be private law issues of contract, property or tort, or matters that would be addressed by industry custom or practice, are issues of public law in securities regulation. For instance, the legal response to fraud or misrepresentation is a central preoccupation of the field of securities regulation, but is this response best analyzed and understood as an issue relating to the law’s general response to false statements in different contexts, or is the law of securities fraud a distinctive and different area, with its own unique problems and legal responses? It is interesting to speculate as to why insider trading and the market for corporate control have attracted a much more intensive and focused academic interest. JLnH&(O
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The United States is a jurisdiction that imposed public regulation on securities markets at a relatively early date. In the first part of the twentieth century most states adopted what were called ‘Blue Sky Laws’ which subjected brokers and dealers to public oversight and required that securities be registered with a public agency before they were sold. Then in 1933 and 1934, partly in response to the market crash of 1929 and the ensuing Great Depression, the United States Congress created a national regulatory agency with similar powers. .X@FXx&
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One way to delineate the varied topics that fall within securities regulation is simply to describe the matters that are within the jurisdiction of the United States Securities and Exchange Commission. The Securities and Exchange Commission administers the provisions of four securities statutes. The Securities Act of 1933, The Securities Exchange Act of 1934, The Investment Company Act of 1940, the Investment Advisor’s Act of 1940, and the Trust Indenture Act of 1939. The most important and far-reaching of these statutes is the Securities and Exchange Act of 1934, which, among many other things, created the Securities and Exchange Commission as an independent federal agency. 9KDEM gCW
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The Securities and Exchange Act covers the following aspects of the securities industries. (1) Self-regulatory organizations or SROs, including all exchanges and the National Association of Securities Dealers (NASDA), (2) licensing of brokers and dealers, (3) margin credit, (4) manipulation of securities markets, (5) information reporting by issuers of securities, (6) solicitation of proxies by issuers of securities, (7) position reporting by officers and five percent shareholders, (8) position reporting by holders of large positions in securities markets, (9) misrepresentation, deception or insider trading in connection with the purchase or sale of a security, and (10) tender offers. A common structural feature of the statute is to require that the regulated entity (exchange, broker, dealer, issuer, and so on) be registered, and to give the Securities Exchange Commission discretion to control what the registered entity can, cannot and must do. j}%ja_9S
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The Securities Act of 1933 requires that public offerings of securities by issuers and issuer affiliates must be registered with the Securities and Exchange Commission. The Investment Advisor’s Act is a licensing statute for persons who offer investment advice to the public. The Investment Company Act of 1940 gives the Commission authority to regulate the structure and activities of investment companies, more commonly known as mutual funds. The Trust Indenture Act regulates some of the terms of the indentures that set the terms of bonds sold in public offerings. D ~stM
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In the US, in addition to the Securities and Exchange Commission, the Commodities Futures Trading Commission (CFTC) regulates the futures markets, whose activities have expanded from trading in future contracts on agricultural commodities to trading in futures on securities indexes. The CFTC is a successor institution to an agency within the Department of Agriculture of the federal government that regulated the futures exchanges at a time when they dealt exclusively in agricultural commodities. U}6B*Xx'
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An important but largely un-addressed question about particular regimes of securities regulation is what actual effects they have on the markets to which they apply. For instance, what differences are there between the American securities markets after 1934, subject to national regulation, and the American securities markets before national regulation was imposed? It is easy enough to observe various differences in the regulation, such as the comparative frequency of private, class-action damage actions based on Rule 10b-5 in the United States and the absence of a similar litigation in other countries. But do the differences in regulation have an impact on the way in which the markets behave, and if so, are those differences that have any economic or social importance? The proponents of national securities regulation in the US had a clear view on this question. In their view, the US stock market crash of 1929 was an important causal factor of the depression of the 1930s. The argument, most graphically set out by Galbraith (1955) at a later date, was that the stock market had been overvalued. As buyers and sellers became aware of this overvaluation, stock market prices fell. The fall in prices of securities caused a drop in personal wealth. The drop in personal wealth caused people to reduce their spending. This reduction in spending caused a reduction in demand, which caused producers to cut prices, cut production, and reduce employment. This caused a further fall in the value of their securities, which set off the whole downward spiral again. In addition, the reduced consumption of the unemployed fed the cycle. Thus the objective of the national securities acts of the 1930s was to force companies to provide accurate, if not pessimistic, information about their value and to reduce speculative excesses in securities markets. The legislative history of the acts shows that this view played an important role in the arguments for the regulation. Q9~*<I> h;
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This view of the role of the securities markets in the 1930s’ depression has been discredited. First, the magisterial monetary history of Friedman and Schwartz (1963) argued with considerable power that the depression had its genesis not in the securities markets but in the monetary policies of the Federal Reserve Board, which shrank the US money supply at a sharp and unprecedented rate. Second, the market crash of 1987, which was as large as the 1929 crash in percentage terms, but which was accompanied by monetary ease rather than monetary tightening, did not lead to any significant contraction in economic activity. The securities markets of 1929 were not a speculative cesspool whose rot spread to the large economy; rather they were an accurate predictor of the impending economic decline. )[PtaPWeT
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The opposite view, that differences in the structure of securities regulation make no difference, is suggested by the work of finance economists. Finance is the part of economics focused on the study of financial markets. Finance economists have found that securities markets are efficient. Indeed, they have not identified any securities markets that are not efficient. This suggests that whatever differences there are in the regulation of securities markets, the differences are unimportant since all markets are efficient, and efficiency is the paramount normative criterion that an economic institution should meet. However, this result is an artifact of the unusual way in which finance economists define efficiency. They define efficiency in terms of the properties of the price series generated by securities markets. They have found that the price series generated by securities markets are random, and they equate this property with efficiency. G f,`
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In normal usage, efficiency is the property of a process in which the outputs generated from the inputs are maximized. Since securities markets make use of many different inputs, and their outputs affect many different aspects of the economy, it is difficult to determine whether particular arrangements are efficient in this sense. xfpa]Z
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George Stigler, in pioneering work, attempted to determine whether the passage of the 1933 Securities Act had had a favorable impact on buyers of public offerings made under the provisions of the act. The question he asked was: have buyers who purchased the post-act regulated offerings done better than the buyers who purchased unregulated offerings? He studied a sample of pre-act offerings, comparing the returns to buyers of securities in public offerings with the return to buyers of a diversified portfolio of securities in the market at the same time. He then studied a similar sample of post-act offerings, making the same comparison. He found that the returns (as compared to the market) of the pre- and post-act buyers were the same. Thus purchasers protected by the regulation were no better off than they were before the act was passed. These findings suggested that the regulation did not help the purchasers of securities (Stigler, 1964). S #MZV@nGF
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Chicago theorists of economics also exerted a clear influence upon American merger policy. The current 1992 Merger Guidelines are evidence that many concepts that started out as Chicago School concepts are now embraced by almost all of the US antitrust community. Throughout the Guidelines the analysis is focused on whether consumers or producers ‘likely would’ take certain actions, that is whether the action is in the actor’s economic interest. This reflects the concern to explain, rather than to merely describe, behaviour in (concentrated) markets, in order to be able to avoid inappropriate regulatory interventions. Intervention by the antitrust authorities is also geared to the goals of allocative efficiency: merger control should prevent that prices are raised above competitive levels for a significant period of time. Market power is defined accordingly. To create or enhance market power or facilitate its exercise, the merger must significantly increase concentration. The concentrated market must be properly defined and measured; the Guidelines pay considerable attention to the difficult problem of market definition. If concentration increases significantly, the American antitrust agency will assess whether the merger raises concern about potential adverse competitive effects. It is stressed that market share and concentration data provide only the starting point for analyzing the competitive impact of a merger. Hasty conclusions from market structure of performance are thus overcome. A merger may diminish competition by enabling the firms selling in the relevant market more likely, more successfully or more completely, to engage in coordinated interaction that harms consumers (tacit or express collusion). :pGaFWkvO
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