It should be a fairly non-controversial first principle that a statute is merely a suggestion, rather than a mandate, if it cannot be enforced. Thus, for the federal securities laws to be effective, they need to be enforceable. I am referring to enforcement both by public and quasi-public action, such as that taken by the Securities and Exchange Commission, criminal authorities, state authorities, and self-regulatory organizations like FINRA, and action taken privately by investors in class actions and other litigation.

I believe that both the public and private aspects of securities enforcement are critical, that they complement each other, and that they are interrelated. The Commission as an institution has taken this view for quite a long time—in fact, I wrote more than a few Commission amicus briefs expressing it during my first tour of duty at the agency. Recent court decisions have led me to revisit this topic and to focus anew on the implications of the interrelationship between private and public rights of action.

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