* Frances and George Skestos Professor of Law, University of Michigan Law School. This article was prepared for the Berle IV Conference held at University College, London. Thanks to participants at that conference for helpful suggestions and criticisms, as well as Jesse Fried and ChuckWhitehead. SpecialthanksgotoDonLangevoortandBobThompson.Iwasaskedtocommentontheir article, “Publicness” in Contemporary Securities Regulation after the JOBS Act, 101 GEO. L.J. (forthcoming,2012),whichwastheinspirationforthisproject.Theirarticleprovidesamuchmore comprehensive discussion of the background issues raised here; we disagree on the best way forward,butIhavebenefittedfromanumberofhelpfulconversationswiththemonthistopic.Iam gratefultotheCookFundoftheUniversityofMichiganLawSchoolforsupportforthisproject. 179 HARV. L. REV 1340 (1966) 2Pub.L.No.73‐38,48Stat.74(1933),codifiedasamendedat15U.S.C.§77. 3Pub.L.No.73‐404,48Stat.881(1934),codifiedasamendedat15U.S.C.§78. 4Cohen,supranote,at1341‐1342.
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Exchange Act would come second.5That accident of history meant that the two statuteswoulddevelopseparatedisclosureobligations.Thatseparatedevelopment ignored the economic reality that the information investors would seek in valuing securities would be largely the same, regardless of whether they were purchasing from an issuer in a primary transaction or another investor in a secondary transaction. Companies’publicofferingandsecondarymarketdisclosureobligationshave gradually converged since Cohen wrote in the 1960s. The rise of integrated disclosureobligationsforthetwoActsinthe1980s6isgenerallyconsideredaway station along the path to full‐blown company registration.7Company registration wouldallowacompanytoregisterasapubliccompanyjustonce,thereafteroffering andsellingsecuritieswheneveritwantedwithouttheneedtoregisterthesecurities themselves.8The move...