Last week, I posted about the SEC’s proposal to reconsider its stance on arbitration of federal securities claims – today, they went and did what was entirely obvious and greenlighted the inclusion of securities arbitration provisions in charters and bylaws.

As I posted last week, Delaware just banned these in September, more in anticipation of bylaws that select a forum without jurisdiction to hear a dispute than arbitration provisions. Commissioner Atkins’s statement all but called on Delaware to change its law and/or invited other states to compete by offering a more favorable law; I expect we’ll see movement along those lines soon.

(I also imagine there will be a resurgence of arguments that arbitration provisions in corporate constitutive documents are not, in fact, contracts, and their enforceability, especially with respect to federal claims, is not controlled by the chartering state. I of course find that argument persuasive, but a number of courts have already rejected it in the context of forum selection bylaws; let’s see if they start to walk that back).

The thing is, it feels like we’re seeing an attack on public information on a number of fronts. To the attacks on the BLS and NOAA and the CDC to the proposed shift to semi-annual reporting to eliminating investor class actions and shunting any remaining disputes into private arbitration, we seem to be rapidly entering a world where the general public has a lot less insight into the American economy and its general well being. That, of course, makes it easier for insiders to exploit their informational advantages – including by manipulating or slanting what gets publicly released, so as to influence popular perceptions. And of course, when legal compliance cannot be policed by the general public – when it is only policed by federal regulators – that makes it easier for regulators to favor some and disfavor others with their enforcement choices.