University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2008 How Do Securities Laws Influence Affect, Happiness, & Trust? Peter H. Huang University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Law and Economics Commons, Law and Psychology Commons, and the Securities Law Commons Citation Information Peter H. Huang, How Do Securities Laws Influence Affect, Happiness, & Trust?, 3 J. BUS. & TECH. L. 257 (2008), available at https://scholar.law.colorado.edu/articles/296. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 3 J. Bus. & Tech. L. 257 2008 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Tue Mar 21 13:10:25 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information PETER H. HUANG* How do Securities Laws Influence Affect, Happiness, & Trust? ABSTRACT This Article advocates that securities regulators promulgate rules based upon taking into consideration their impacts upon investors' and others' affect, happiness, and trust. Examples of these impacts are consumer optimism, financial stress, anxiety over how thoroughly securities regulators deliberate over proposed rules, investor confidence in securities disclosures, market exuberance, social moods, and subjec- tive well-being. These variables affect and are affected by traditional financial vari- ables, such as consumer debt, expenditures, and wealth; corporate investment; initial public offerings; and securities market demand, liquidity, prices, supply, and volume. This Article proposes that securities regulators can and should evaluate rules based upon measures of affect, happiness, and trust in addition to standard observable financial variables. This Article concludes that the organic statutes of the United States Securities and Exchange Commission are indeterminate despite man- dating that federal securities laws consider efficiency among other goals. This Arti- cle illustrates analysis of affective impacts of these financial regulatory policies: mandatory securities disclosures; gun-jumping rules for publicly registered offer- ings; financial education or literacy campaigns; statutory or judicial default rules and menus; and continual reassessment and revision of rules. These regulatory pol- icies impact and are impacted by investors' and other people's affect, happiness, and trust. Thus, securities regulators can and should evaluate such affective impacts to design effective legal policy. Harold E. Kohn Chair, Professor of Law, Temple Law School; J.D., Stanford Law School; Ph.D., Harvard University; A.B., Princeton University. Thanks to Bob Clark, Susan Franck, Joe Grundfest, Claire Hill, Dave Hoffman, Rebecca Huss, Danny Kahneman, Don Langevoort, Scott Moss, Frank Partnoy, Hillary Sale, Amy Sinden, Erik R. Sirri, Stephanie Tai, Fred Tung, Lauren E. Willis, and audiences of the SOX & the Capital Markets panel, at "The Sarbanes-Oxley Act of 2002 Five Years Later: Assessing Its Impact, Charting Its Future" symposium, at the University of Maryland School of Law; Psychology and Economics Theme Seminar, School of Social Science, Institute for Advanced Study; Securities Regulation panel of the Association of American Law Schools annual meeting; Behavioral Law and Economics panel of the American Law and Economics Association annual meeting; Law and Emotions panel of the International Society for Research on Emotions meeting; Midwest Law and Economics Association annual meeting; Methodology of Law and Economics panel of the Eastern Economics Association meeting; New Looks at Corporate Regulation and Corporate Governance panel of the Law and Society Association annual meeting; and Fordham Law School for helpful discussions. JOURNAL OF BUSINESS & TECHNOLOGY LAW How DO SECURITIES LAWS INFLUENCE AFFECT, HAPPINESS, & TRUST? TABLE OF CONTENTS I. INTRODUCTION ............................................... 259 II. AFFECT, HAPPINESS, & TRUST ....................................... 261 A. Affective Impacts ........................................... 261 B. H appiness ................................................. 268 C . Trust ..................................................... 272 III. OTHER RECENT SECURITIES LAW CONTROVERSIES ................... 273 IV. COST-BENEFIT ANALYSIS IN SECURITIES REGULATION ............... 280 A. Current Practice of CBA by the SEC and Other U.S. Financial Regulators ................................................. 280 B. Cost-Benefit Analysis as Rationality of Social Decision Making . 282 . V. IS THE SEC REQUIRED BY LAW TO PERFORM ONLY CBA 285 A. Informational Efficiencies ................................... 286 B. Pareto Allocational Efficiency ................................ 287 C. Kaldor-Hicks Allocational Efficiency .......................... 287 D. Indeterminacy of Efficiency ................................. 288 VI. AFFECTIVE IMPACTS OF VARIOUS SECURITIES LAWS ................. 289 A. Affective Impacts of Mandatory Securities Disclosures .......... 291 B. Should the SEC Worry About Scaring Investors? . 292 C. Cultural, Diversity, and Heterogeneity in Affective Impacts of Securities D isclosures ....................................... 293 D. Regulating Timing of Voluntary Securities Disclosures ......... 295 E. Regulating Audiences of Voluntary Securities Disclosures ....... 296 F. Overall Affect from a System of Securities Regulations ......... 297 G. Unconscious Affect and Securities Investing ................... 298 H. Financial Literacy and Securities Educational Campaigns ...... 299 I. Financial and Securities Default Rules ....................... 304 J. Continual Corporate Governance Reforms .................... 305 VII. CONCLUSIONS ................................................. 308 JOURNAL OF BUSINESS & TECHNOLOGY LAW PETER H. HUANG I. INTRODUCTION THE SARBANES-OXLEY ACT OF 2002 (SOX),' in particular, section 404's internal financial control provisions, has generated a great deal of controversy. Four legal scholars considered evidence from empirical studies utilizing Cost-Benefit Analysis (CBA),2 to conclude that SOX had modest benefits that were hard to document, but very large measurable compliance costs. Other corporate law scholars ex- pressed opposite attitudes towards SOX.4 This debate over SOX raises a pair of related foundational normative questions, namely, what should be the appropriate way to evaluate securities laws, and what should be the role of CBA in the evalua- tion of securities laws. CBA is "a set of procedures for defining and comparing benefits and costs. In this sense it is a way of organizing and analyzing data as an aid to thinking."5 Kenneth J. Arrow, a 1972 Nobel Laureate in economics,6 stated that "some sense of 1. Pub. L. No. 107-204, 116 Stat. 745 (codified as amended in scattered sections of 11, 15, 18, 28, and 29 U.S.C.). 2. Robert Charles Clark, Corporate Governance Changes in the Wake of the Sarbanes-OxleyAct: A Morality Tale for Policymakers Too, 22 GA. ST. U. L. REV. 251 (2005) (proposing that future regulations emulate Title VII of SOX in requiring empirical research and corresponding responsive adjustments or improvements); Donald C. Langevoort, Internal Controls After Sarbanes-Oxley Revisiting Corporate Law's "Duty of Care as Responsibility for Systems,"31 J. CORP. L. 949 (2006) (explaining controversy over Part 404 of SOX in terms of indeterminacy over costs and benefits of internal controls); Larry E. Ribstein, Market vs. Regulatory Responses to Corporate Fraud:A Critique of the Sarbanes-OxleyAct of 2002, 28 J. CORP. L. 1 (2002) (arguing that SOX is unlikely to do a better job than self-correcting markets); Roberta Romano, The Sarbanes-Oxley Act and the Making of Quack Corporate Governance, 114 YALE L.]. 1521 (2005) (evaluating substantive corporate governance mandates of SOX based upon relevant empirical accounting and finance literature); see also Larry E. Ribstein, Bubble Laws, 40 Hous. L. REV. 77, 83-90 (2003); Larry E. Ribstein, International Implications of Sarbanes-Oxey: Raising the Rent on US Law, 3 J. CORP. L. STUD. 299 (2003); Larry E. Ribstein, Sarbanes-Oxley After Three Years, 2005 NEW ZEALAND L. REV. 365; Larry E. Ribstein, Sarbox: The Road to Nirvana, 2004 MICH. ST. L. REV. 279. 3. See generally HENRY N. BUTLER & LARRY E. RIBSTEIN, THE SARBANES-OXLEY DEBACLE (2006). 4. See Robert B. Ahdieh, From "Federalization"to "Mixed Governance" in Corporate Law: A Defense of Sarbanes-Oxley, 53 BUFF. L. REV. 721 (2005); William W. Bratton, Enron, Sarbanes-Oxley and Accounting: Rules Versus Principles Versus Rents, 48 VILL. L. REV. 1023 (2003) (finding SOX begins a political process intended over time to