Document Type

Article

Publication Date

2003

Disciplines

Law | Securities Law

Abstract

The corporate governance scandals of 2003 have brought renewed focus on mandatory disclosure. One of the most fundamental questions relating to this kind of regulation is the choice of regulatory area. The United States initially faced this question in the 1930s when, after intense debate, it decided to move from an exclusively state-based system to one primarily relying on federal regulation. It is a hot issue today as well. The countries of Europe, for example, are currently deciding the extent to which the European Community, rather than its member states, should determine securities disclosure in Europe. Canada is deciding whether to follow the path taken by Australia in the 1980s and to enlarge the role of the federal government in a system that has traditionally left disclosure regulation primarily to the provinces. Also, advocates of issuer choice are urging the United States to reconsider its 1930s decision and to give issuers the option to choose among a reinvigorated set of state regulatory regimes. The issuer-choice school of thought is influencing the debates in Europe and Canada as well. Finally, other advocates are pushing for a move in the opposite direction, arguing that standards for issuer disclosure should be set at a global level.

This Article constructs an economic-efficiency based theory of optimal regulatory areas for securities disclosure. While larger political and constitutional considerations unrelated to efficiency will inevitably also play a role in the resolution of the debates recounted above, efficiency considerations are important because they go to the capacity of capital markets to promote the generation of real wealth. The theory developed here can help identify the efficiency-related tradeoffs involved in choosing one level of government versus another and the information that is needed to choose intelligently.

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