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Fear and Social Capitalism: the Law and Macroeconomics of Investor Confidence Steven A Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2002 Fear and Social Capitalism: The Law and Macroeconomics of Investor Confidence Steven A. Ramirez Loyola University Chicago, School of Law, [email protected] Follow this and additional works at: http://lawecommons.luc.edu/facpubs Part of the Law and Economics Commons Recommended Citation Ramirez, Steven, Fear and Social Capitalism: The Law and Macroeconomics of Investor Confidence, 42 Washburn L.J. 31 (2002). This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Faculty Publications & Other Works by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Fear and Social Capitalism: The Law and Macroeconomics of Investor Confidence Steven A. Ramirez* On July 9, 2002, President George W. Bush delivered a speech intended to revive investor confidence, in order to quell a rapidly de- clining stock market that was widely viewed as the by-product of a string of scandals in the business sector. These scandals had shaken investors' trust in the integrity of corporate America.1 The market subsequently swooned nearly 700 points over the next forty-eight hours.2 American capital markets were experiencing a historic crisis of confidence that was severely impacting equity prices and the availa- bility of risk capital. 3 One measure of the extent of the crisis is that even though the economy was in the midst of a strong recovery, stock prices had plunged 20% from those prices prevailing during the eco- nomic trough; in prior recoveries prices typically climbed 20%.4 En- ron Corporation, a former darling of Wall Street and one of the largest companies in America, had evaporated seemingly overnight in late 2001, leading to the then largest bankruptcy in American history.5 Not to be outdone, WorldCom, in early summer 2002, announced that it had overstated its earnings by some four billion dollars, and later filed a new largest bankruptcy in American history.6 "Squeaky clean" * Professor of Law, Washburn University School of Law. I dedicate this article to my students, and in particular the Washburn Law Journal Editorial Board for the 2002-03 academic year. They conceived this article before I did, in general terms at least, and I consider the solici- tation to write this article a high point of my teaching career. 1. Marcia Vickers, Commentary: Nice Speech, Mr. President,But.... Bus. WK., July 22, 2002, at 37. 2. See id. When President Bush spoke, the Dow Jones Industrial Average was at about 9275; less than five hours later it traded at 9096. Bush Speech Leaves Investors Wanting Action, WALL ST. J., July 10, 2002, at C1 (stating that the Dow Jones Industrials fell 178.81 points follow- ing President Bush's speech). The next day the slide continued, virtually straight down, "like an anchor in a fishpond." Vickers, supra note 1, at 37. The market closed on July 10, 2002, at 8813.5, down 4.97% since the end of the Bush speech. See E. S. Browning, Blue Chips Fall 3%; S&P 500 Hits 4-Year Low, WALL ST. J., July 11, 2002, at Cl (stating that Bush's speech was the most "immediate" problem causing the Dow to skid 282.59 points). On July 11, 2002, the Dow fell an additional 208 points, before recovering in a midday surge. Peter A. McKay, Industrials Recover From Depths Amid Late Tech Buying, WALL ST. J., July 12, 2002, at C1. Within one week, the Dow traded over 1000 points lower than at the beginning of the Bush speech. See Matt Krantz, Dow's Bounce Does Little to Dispel Fears;Analysts Hesitate to Say Markets Have Bottomed, USA TODAY, July 16, 2002, at 1B (showing a Dow low of 8244.87 on Monday, July 15, 2002). 3. Gregory Zuckerman, Despite Rebound, Fears of CorporateCredit Crunch Linger, WALL ST. J., July 25, 2002, at C1 (stating that investor fears are manifest in the degree of spread be- tween corporate debt and zero-risk U.S. Treasury obligations; investors in 2002 were demanding greater yields, thereby expanding spreads and threatening a "much-feared credit crunch"). 4. Editorial, It's Time for a New Era of Reform, Bus. WK., July 22, 2002, at 96. 5. Brian M. Carney, Scandals Show American Strength, WALL ST. J., July 24, 2002, at A14 ("WorldCom's bankruptcy quickly eclipsed Enron's claim to the title of the largest bankruptcy proceeding on record."). 6. Shawn Young et al., Leading the News: WorldCom Files for Bankruptcy, WALL ST. J., July 22, 2002, at A3. HeinOnline -- 42 Washburn L.J. 31 2002-2003 Washburn Law Journal [Vol. 42 Martha Stewart faced allegations of illegal insider trading. 7 Merck, Bristol-Myers Squibb, Qwest, Global Crossing, Xerox, and others each added to the drumbeat of scandals and the parade of investor losses. 8 All of this culminated in the week President Bush delivered his Tuesday morning speech; Bush's speech ushered in the worst week for the stock market since the financial nosedive that followed in the wake of the Tragedy of September 11, 2001. 9 Bush's speech failed to quell declining investor confidence. Sim- ply put, the capitalist class demanded more - more enforcement, more regulation, and therefore more government. 10 Responding to the demands of the capitalist class, the U.S. Senate delivered the next day, passing proposed legislation that was significantly more stringent than that proposed by the President. 1 Indeed, even Republican lawmakers quickly assumed more activist positions than that articu- lated by President Bush. 12 In sum, the clarion calls for reform ema- nated from mainstream business publications, Republican leaders, and the capitalist class itself - not the left wing.1 3 Capitalists themselves wanted government intervention, and perhaps the best survey of their sentiment was the stock market decline in the wake of the President's 4 speech. 1 7. Constance L. Hays, Company Says Stewart's Woes Are Taking Toll, N.Y. TIMES, July 25, 2002, at C1 (stating that Martha Stewart was being investigated by both Congress and the SEC). 8. See The Unlikeliest Scourge, ECONOMIST, July 13-19, 2002, at 22 ("A string of scandals at some of America's most high-flying firms . has radically changed the public mood. As investors see their portfolios shrink, venerated corporate bosses have been exposed as fraudu- lent hucksters."). Nor is the parade of horribles over, on July 19, 2002, Nicor, Inc. restated its earnings and disclosed accounting problems to the public. Jon Van, Accounting Woes Fuel Nicor Stock Plunge, CHI. TRIB., July 20, 2002, at Al. Its stock, once considered a safe haven utility issue, plunged 40% in a single trading session. Id. Nicor also is unlikely to be the last instance of scandal. 9. Ken Fireman, Heard on the Street? Mixed Results After Bush Speech Seeks to Calm Consumers, Markets, NATIONAL REVIEW, July 16, 2002, at A6. Bush gave a second speech after his July 9 speech in Birmingham, Alabama, on July 16, 2002. Id. Despite both speeches, the market suffered its worse two week decline since October 1987. E.S. Browning & Aaron Lucchetti, Crash Course: Awash in Losses, Investors Look for Telltale Signs of a Bottom, WALL ST. J., July 22, 2002, at Al (reporting that the Dow closed at 8019.26). 10. "But more than tough talk about cleaning up misdeeds on Wall Street, investors large and small say they are waiting for concrete steps showing that Washington is serious about fight- ing corruption and restoring confidence in financial markets." Bush Speech Leaves Investors Wanting Action, supra note 2, at Cl; see also It's Time for a New Era of Reform, supra note 4, at 96 ("[T]he President should have gone further."). 11. Shailagh Murray & John D. McKinnon, Senate Passes Tough Fraud Bill in Unanimous Vote, WALL ST. J., July 11, 2002, at Al ("[L]awmakers voted 97-0 to establish sweeping new powers to target corporate fraud .... "). 12. Jeanne Cummings & Shailagh Murray, Hastert Backs Senate on Governance, WALL ST. J., July 12, 2002, at A4 (stating that the Republican Speaker supports Senate bill over Bush proposals). 13. See Editorial, The System Needs Fixing, Mr. President, Bus. WK., July 15, 2002, at 148 (calling on the President to support Democratic Senator Paul Sarbanes' accounting reform bill and to consider even more radical proposals to assure operation of a "free market system" with integrity and transparency). 14. As this article goes to press, things on Wall Street have stabilized. That is wholly irrele- vant to the reality that in the summer of 2002 investors were deeply shaken by the corruption in corporate America. Even if a complete meltdown in investor confidence did not take hold in the HeinOnline -- 42 Washburn L.J. 32 2002-2003 2002] Fear and Social Capitalism This is hardly new. Capitalists virtually always want government intervention - albeit on their own terms - whether in the form of profit-enhancing protective regulation, subsidies, or government purchases. 15 Examples of the reality, as well as the pervasiveness of government management of the economy, are the actions taken after the events of September 11, 2001.16 Monetary policy immediately as- sumed a central role in countering pervasive consumer and investor fear and became strongly stimulatory. 17 Banking regulators quickly encouraged expanded lending, even at the cost of underwriting qual- ity.18 Congress and the President threw a life preserver to virtually the entire airline industry with little debate or delay, guaranteeing bil- American capital markets, the potential now is once again a reality, not just a theoretical possi- bility or historical artifact.
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