A familiar face returns to BCC. Kaimi Wenger was around when we founded this scrapheap years ago, and remains one of the Bloggernacle’s most recognized names. He used to be a real lawyer, but now has left that noble profession to teach hapless 1Ls about res judicata and other worthless arcana. Welcome back to this errant knight, this prodigal blogger who now guests among us.
Justice Brandeis’s famous phrase “sunlight is the best disinfectant” set the tone for a century of securities regulation. The rule is this: To pass muster under securities laws, you must disclose. You must give accurate and complete material information to investors. And that’s about all. It’s fine if your business plan is “We will buy large quantities of lead and then hire a wizard to wave a magic wand over the lead, turning it into gold.” The SEC will not say, “That’s an idiotic business plan, buster.” What they will ask, is, “did you disclose?” And as long as you disclose, you’re generally okay (some exceptions below), no matter how ridiculous your business plan may be. This approach reflects a particular philosophy of law, a hands-off, laissez-faire approach to regulation. The SEC’s role is to make sure that the markets have accurate and complete material information — and after that, to get out of the way and let investors make their own choices. It assumes that investors, individually or collectively, are pretty good judges of information and are well-equipped to figure things out, themselves.
Or, to put it in Mormon terms, “I teach them correct principles, and they govern themselves.”
The sunlight approach is relatively unobtrusive (not to mention cheap!), and allows markets to sort things out themselves, mostly, with the government acting more as an impartial referee than a player. Brandeis was in favor of this approach more broadly. Among his other famous aphorisms is the free-speech line that “the remedy [for false or problematic statements] is more speech, not enforced silence” — often paraphrased as “the remedy for bad speech (or false speech) is more speech.”
Even the most zealous advocates of the sunlight approach tend to agree that there are limitations on disclosure. These are built into the system, too. Broadly speaking, there are times when companies cannot legally disclose new information, particularly during some time periods close to an initial public offering. That is, there are certain precarious time periods when disclosure would be bad, because it might improperly affect investors. (These rules are very complicated; see your attorney for details.) This reflects a different philosophical approach: Less-than-perfect information can be bad, and information is best meted out in correct doses. Or, in the words of Springsteen (most famously covered by Manfred Mann), it’s possible to be blinded by the light. (Revved up like a deuce, another runner in the night.)
Also, we’re seeing something of a sea change in recent years. In the wake of the Enron collapse, critics called for more substantive regulation, and those proposals eventually became the Sarbanes-Oxley Act. SOX is a shift away from the disclosure regime. It requires not only disclosure, but also adds a number of substantive rules about what companies can and cannot do. Gone is the trust in investors or the market to get it right; investors apparently can’t figure out how to deal with complex financial filings on their own, and the government needs to regulate corporate actions and disclosures more closely so that investors don’t blow it. This isn’t sunlight; this is lysol. (And of course, SOX has legions of critics itself.)
What’s the best amount of sunlight as we examine church history?
We can posit that there are a number of potentially troubling topics in church history. There are perennially tough topics like polygamy and Mountain Meadows; there are questions about Blacks and the priesthood, women’s roles, blood atonement, papyrus; there are little embarrassments like Zelph and Kinderhook. What approach is best for addressing these topics?
One approach, following Brandeis’ dictum, is to throw open the shutters and let in the sunlight. Let’s allow (even encourage) historians to address these topics; discussion can only help. Various prominent writers have taken this approach. For instance, Leonard Arrington wrote that honest biographies of church leaders “are not damaging to the prestige of our leaders, nor will they undermine the mystique that rightly surrounds the headquarters of a dynamic religious organization.” Honest biographies “describe both the positive and negative aspects of their subjects’ personality, and are biographies of real persons, not pastiche leaders. We may not be edified by every move they made, but we are warmed by their humanity.” We regularly hear similar messages from bloggers like Kevin Barney, Ardis Parshall, and Kristine Haglund. Church members are smart people; let’s put these topics in the sun, and trust the members to govern themselves.
Other voices are less sanguine about this approach. Most prominently, Elder Packer condemned historians for too-candid writing, and stated that “some things that are true are not very useful.” Along the same lines is Elder Oaks’ more recent statement that criticism of church leaders is wrong, even if true.
And, while those arguments are often mocked in the bloggernacle, they do make sense. Church leaders are clearly worried that members will be driven from the church by troubling aspects of church history. In one sense, one might compare these to the sensitive time periods in securities law — sometimes we’re really worried about being blinded by the light.
What’s the best mix of sunlight and shade? I’m really not sure that there’s an optimal level of sunlight, across-the-board.
I’m not really a medical professional, but I have my doubts as to whether sunlight is actually a good disinfectant. (Iodine tends to work better, in my experience.) I do know that sunlight is great for gardens, and for relaxing. And small children like it, but that you need to make sure the kids are wearing sunblock, or you’ll be sorry. And when there’s not enough sunlight, people end up with seasonal affective disorder; and plants don’t grow very well; and the kids get grumpy from playing inside.