It might be illegal. But...
I'm trying to see if there are any technical differences at all between the two practices. If there are no such technical differences, then the law has no reason to be and it's mere government interfering in the proper function of the market. If there are differences we could find an interesting econometric relation between the two, that could be very useful when creating a legislation around the subject; you see, we cannot legislate economic laws, we can merely observe them and legislate around them.
I've have found a difference between the two, they are not paying short interests. This is no small matter. Over a very large sum of money, that is a scam since it's allowing firms to expand the stock multiplier into infinity. This scam can be penalized with the existing legislation. Let me explain;
My econometrics are a bit rusty, but the relation I'm seeing here is that in a perfectly shortable market [without restraints] where interests are paid in full and all stock is electronic, the float will expand to equal a stock supply of:
float/(short interest rate)= stock supply.
if we have a float of 10,000 shares and an short interest on 5% we'll have 200,000 shares supplying the market.
The problem with naked shorts is that no short interests are being paid so you get a case where 10,000/0= infinite. With an infinite supply the only possible price for a stock is 0.
If courts create regulation further restricting shorts, and putting fines over naked shorts [be it jail, or plain money] and perhaps even creating a regulating body; you'll have yourselves a terrible waste of resources.
All you need to do is make those firms pay short interest to the one lending the stock and the problem is solved. Once you have no way around short interests, the equation balances itself out. In the case of naked shorts the stock is lent by the buyer, so applying such a method will actually make the market more efficient as the short interest will be gained by the owner of the stock not his clearing firm, and you would remove the whole stock lending process. When fail to deliver happens, start charging interests, you can enforce this with the current regulatory bodies and without a need for large changes in legislation.
I'm trying to see if there are any technical differences at all between the two practices. If there are no such technical differences, then the law has no reason to be and it's mere government interfering in the proper function of the market. If there are differences we could find an interesting econometric relation between the two, that could be very useful when creating a legislation around the subject; you see, we cannot legislate economic laws, we can merely observe them and legislate around them.
I've have found a difference between the two, they are not paying short interests. This is no small matter. Over a very large sum of money, that is a scam since it's allowing firms to expand the stock multiplier into infinity. This scam can be penalized with the existing legislation. Let me explain;
My econometrics are a bit rusty, but the relation I'm seeing here is that in a perfectly shortable market [without restraints] where interests are paid in full and all stock is electronic, the float will expand to equal a stock supply of:
float/(short interest rate)= stock supply.
if we have a float of 10,000 shares and an short interest on 5% we'll have 200,000 shares supplying the market.
The problem with naked shorts is that no short interests are being paid so you get a case where 10,000/0= infinite. With an infinite supply the only possible price for a stock is 0.
If courts create regulation further restricting shorts, and putting fines over naked shorts [be it jail, or plain money] and perhaps even creating a regulating body; you'll have yourselves a terrible waste of resources.
All you need to do is make those firms pay short interest to the one lending the stock and the problem is solved. Once you have no way around short interests, the equation balances itself out. In the case of naked shorts the stock is lent by the buyer, so applying such a method will actually make the market more efficient as the short interest will be gained by the owner of the stock not his clearing firm, and you would remove the whole stock lending process. When fail to deliver happens, start charging interests, you can enforce this with the current regulatory bodies and without a need for large changes in legislation.