Hundreds of critics in the past eighteen months have heaped abuse on the SEC Enforcement Division. How could the Division have missed so much misbehavior on Wall Street? How could the Division's young lawyers have been charmed by Bernie Madoff and thwarted from discovering his terrible crimes? Most critics seem to agree that the Division's most urgent needs include developing substantially more financial sophistication among Division lawyers and investigators; better communications within the Commission and with other federal agencies; and a meaningful system for handling tips and processing information. The SEC's response to its critics has been remarkable. The Commission has enlisted an energetic cadre of former federal prosecutors to lead the Division. They have redeployed comfortable, desk-bound middle managers back into the field to investigate market misconduct. Reversing the Commission's tradition of micromanagement, they have given senior lawyers new authority to issue subpoenas and initiate settlements. A major reorganization plan is already underway. The SEC, in short, is in the midst of "the most significant revamp of the division in the last 30 years." This Article begins with the optimistic hope that the current reorganization is successful in meeting the most urgent needs of the Division. It then sketches out six suggestions for further improving the Enforcement Division: a bounty program to compensate informants who come forward with useful information; a victim services unit; a proposal to develop behavioral expertise within the Division; a surveillance and monitoring program for defendants demonstrating a recidivist profile; a sanction policy for individuals that is proportionate, progressive, remedial, and real; and regular publication of meaningful data regarding losses from fraud in the securities markets.
71 University of Pittsburgh Law Review 403-437 (2010)
Barnard, Jayne W., "Evolutionary Enforcement at the Securities and Exchange Commission" (2010). Faculty Publications. 332.