A modest proposal: Right-sizing exchange immunity

Abstract

The US securities industry is governed by three regimes: federal disclosure rules, state laws and self-regulatory organisations. The self-regulatory scheme is the result of an 80-year-old compromise conceived during the height of the Great Depression. While today’s industry is unrecognisable from that time, the self-regulatory rules remain nearly unchanged. Specifically, the US exchanges — sanctioned as self-regulatory organisations with immunity from private damages suits — evolved from mutually-owned utilities to for-profit enterprises. At the same time, alternative trading systems now execute significant trading volumes outside the traditional exchange venues. Despite these and other developments, the self-regulatory regime remains almost entirely unchanged from its inception. This paper discusses important facets of the US self-regulation debate.