Stop the Game!: How To Chill Bubbles Sensibly
John C. Coffee Jr., 17 March 2021
Much of the excited journalism on GameStop has focused on its asserted “Democratization” of the markets or the new “populism” sweeping Wall Street. This sort of commentary is the product of journalists being on tight publication deadlines and willing to generalize based on a data sample of one. Those of us who take a longer-term view see it differently: Bubbles are bad; GameStop was a bubble; and the influences that caused it (which were indeed new and novel) need to be chilled. Those who disagree with the last sentence should probably stop reading here.
But how you chill a bubble is not a simple question. Many commentators have unrealistic solutions: (1) Prosecute everyone (or at least those on Reddit) for manipulation; and (2) subject websites to tight regulatory controls. Such solutions, proposed by those who can reach legal conclusions faster than the average knee can jerk, face formidable obstacles. First, manipulation is a crime of intent that requires the actor to attempt willfully to move a stock price (up or down) to an “artificial” price that the actor knows is different than that which would be reached by the normal intersection of supply and demand in a fully informed market. Currently, the circuits are split, but both the U.S. Courts of Appeals for the Second Circuit and D.C. Circuit insist that the defendant must intentionally send a false pricing signal (such as a wash sale or a factually false statement). See Fezzandi v. Bear Stearns & Co., 777 F.3d 566 (2d Cir. 2015); Koch v. SEC, 793 F.3d 147 (D.C. Cir. 2015). Second, the First Amendment largely precludes any attempt to shut down social media. In addition, §230 of the Communications Decency Act gives immunity to websites, such as Reddit, for what their users say on them. Beyond that, mere statements of opinion—even manic opinions—are not fraudulent. Most of the lost souls on WallStreetBets sound like true believers, not cynical manipulators, and their prediction that GameStop was “going to the moon” were silly, but not fraudulent. According to Motley Fool, the average investor in a Robinhood account had an account balance (in 2020) between $1,000 and $5,000. A colleague tells me that his account balance on Draft Kings (a different betting venue) is greater than that. In short, Robinhood’s investors are not big-time and are probably feeling their losses keenly at this point.
