May 10, 2014
Breathing Life into Living Wills
Posted by Erik Gerding

For your weekend reading pleasure: Thomas Hoenig, Vice Chair of the Federal Reserve, made a speech this week arguing that the living wills provisions in Title I of Dodd-Frank were critical to ending financial bailouts.  He concludes:

"In theory, Title I provisions to resolve these firms make the system safer.  In practice, it will be the industry and its regulators that make the law work."

Sing It loud!  

But calling on industry and policymakers to make the law work points to the biggest problem with (arguably) the only really novel policy solution in post-crisis financial reform: where are the incentives for financial firms to get their living wills right?  Unfortunately, we might not know if living wills work until firms actually fail.  One fascinating item I learned in Mehrsa Baradaran's great forthcoming article Regulation by Hypothetical: the living wills that the largest Wall Street banks have produced appear to all have been drafted by the same team at Davis Polk.  Judge for yourself how helpful these recipes will be for regulators attempting to untangle a large failed financial colossus.

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May 09, 2014
Lawyers, Econs and Money: HBR on Economists versus Lawyers on the Federal Reserve Board
Posted by Erik Gerding

Peter Conti-Brown wrote an interesting take over at Politico on the constitutional problems with so many vacancies on the Federal Reserve Board.  Which leads to the question: who should fill the empty slots?  What sorts of backgrounds should they have?  Some in Congress have called for representation by community bankers.  Recently, at the Harvard Business Review site, Justin Fox had an interesting historical take on how, over decades, economists have gradually taken over the most important spots on the Federal  Reserve Board (i.e. the Chair and membership on the Open Market Committee), while the representation of lawyers has declined.

It provides food for thought.  First, what value do lawyers add to the Fed leadership?  I agree with the quoted remarks of Alan Blinder that it is hard to conceive of a chair without an economics PhD given the highly technical data coming from Fed staff.  However, lawyers can clearly contribute mightily to the regulatory mission of the Fed, an area that critics charge was neglected under Greenspan in favor of monetary policy (see here for one critique).

One retort is that this is not the area on which the Open Market Committee focuses.  Even so – I have argued (in this article and in my book) that changes in the law and financial regulation often have an enormous monetary impact.  Consider how regulatory arbitrage and regulatory changes midwifed the birth of the shadow banking system, which had a profound impact on monetary policy in the years before and during the crisis.  Scholars (like Margaret Blair and me) argue that the fact that monetary expansion occurred through regulatory means rather than traditional “channels” (like central banks buying and selling bonds) may have blinded many macroeconomic policymakers from realizing that a bubble was forming and what was driving it.  The upshot: if legal change can have monetary impacts, then lawyers can help understand when that change is occurring.  We need better coordination of prudential regulation and monetary policy-making.

Second, and more provocatively, Fox’s article points out how the real drop in representation among the Fed’s Open Market Committee comes in members without a graduate economics degree, J.D., or MBA.  Others have recognized this trend before.  Some, like Tim Canova, have called for a return to the Fed of the ‘30’s and ‘40’s, which they see as much more democratically accountable. 

Even if you don’t agree with that position, consider the parallels to the Supreme Court, which has also been criticized for having an increasingly homogenized makeup in terms of professional background even while it has diversified in terms of gender.  All the current justices studied at a very small number of law schools and have a similar mix of appellate/professorial backgrounds. 

I’m sure there are other examples of powerful public bodies being homogenized professionally.  This dynamic means that some courses are, and some course will not be, served at the intellectual feast.

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April 16, 2014
How Burdensome Is New Financial Regulation?
Posted by David Zaring

JPMorgan reported on how many people are required to do new regulatory compliance work.  Let's outsource to this take:

  • "That one million hours a year devoted to resolution planning is 500 full-time employees"
  • "There are 8,000 employees 'dedicated solely to building and maintaining an industry-leading Anti-Money Laundering (AML) program.' JPMorgan employs more AML compliance officers than the Treasury and the Fed combined."
  • Stress testing required 500+ FTEs
  • Compliance with Basel's new securitization rules has required 35,000 hours of work (at 2000 hours per year, that's only 17.5 FTEs, so you can see why they moved to hours there).

That's a lot of compliance, and indeed, at these rates, way more people do compliance for JPMorgan than, probably, do actual investment banking.  Of course, maybe we want all of this given that the firm is far too big to fail, and maybe we want to make banking burdensome and unprofitable.  If so, we are on our way!

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March 08, 2014
Destructive Coordination in Securities Contracts
Posted by Greg Shill

Domino-effect
Image: Flickr

In my last post—also a shameless plug for my recent article, “Boilerplate Shock”—I argued that boilerplate terms governing securities could serve as a trigger that transforms an isolated credit event into the risk of a broader systemic failure. I’ll now briefly explain why I see this danger—which I call “boilerplate shock”—as a general problem in securities regulation, not just some quirky feature of Eurozone sovereign debt (the focus of the paper and post). Any market where securities are governed by uniform boilerplate terms is vulnerable to boilerplate shock.

The nature of this phenomenon—systemic risk—is of course familiar, but its source in contract language is a little unintuitive. How could private contracts unravel an entire securities market or the world economy?

Coordination around uniform standards. 

In the back of our mind most of us probably still conceive of contracting as an activity that occurs among two, or perhaps a few, individuals or firms. But when standard terms are used by virtually all actors within a given market, it’s worth considering the collective impact of those terms as a distinct phenomenon.

Coordination’s benefits are well known. Consider uniform traffic signals. But coordination can also compound the effects of bad individual decisions.

As Charles Whitehead has argued, widespread “destructive coordination” among banks during the precrisis days helped generate systemic risks. When the credit markets froze, for example, firms using the same risk management formulas reacted in the same way at the same time. This helped transform isolated events into systemic ones—e.g., Lehman, the canonical example of a failure that triggered a de facto coordinated panic.

A similar risk, I argue, is present where participants in a securities market rely on the same standardized contract terms. Whether they were intended to or not, these terms will often control what happens in the event of certain legal emergencies, like a country departing the euro or Lehman declaring bankruptcy.

For example, if an effort by Greece to pay its bonds in “new drachmas” is rejected because of Boilerplate Contract Terms A and B, the market will surely be concerned that Terms A and B also govern the bonds of similarly situated borrowers, like Spain, Italy, etc. You’ll see that the borrowing premium the “peripheral” euro countries (the uppermost five lines: Ireland, Italy, Greece (biggest spike), Portugal, Spain) paid versus richer euro countries (Germany, France, the Netherlands, the three lowest lines) zoomed higher as worry over a Greece exit gripped markets in late 2011/early 2012, and again (to a lesser extent) because of Cyprus exit talk in early 2013:

Eurozone Debt Chart 1-1-10 - 7-13-13

Bloomberg. Click to enlarge.

Moreover, this panic occurred against a backdrop of unduly rosy assumptions (namely, that a departing euro country could convert its bonds into a new currency and thereby avoid default, a likely contagion trigger). I argue that the uniformity of boilerplate across these bonds would intensify these problems significantly since it’s likely to result in a declaration of default.

To my mind, this demonstrates that boilerplate securities contracts, in the aggregate, can be systemically significant. “Boilerplate Shock” introduces this concept and offers a modest proposal to mitigate its dangers in the Eurozone.

Beyond the euro, what about the risks of boilerplate shock in general?

Boilerplate shock is probably an inherent and permanent risk in any securities market.

Securities contracts are quintessential candidates for boilerplate. They are used by sophisticated parties for repeat or similar transactions and are drafted quickly—sometimes in three and a half minutes. The (correct) assumption is that they are more efficient for the parties that use them.

I’d like to begin thinking about how contracts can be drafted with a view to systemic risk mitigation, or at least to avoid exacerbating existing risks. But I think this is a hard problem that lacks an off-the-shelf solution:

  • The risk is also an externality: it is severe because of its collective impact. The parties do not bear the primary risk that uniform contracts will result in a meltdown, and in the unlikely event a crash happens (1) no individual party will be to blame and (2) at least one party to the initial transaction (the initial purchaser of a bond, for example) will probably no longer hold the asset, because most systemically significant securities are actively traded on the secondary market.

But banning or discouraging boilerplate is not the answer:

  • The risk that a bunch of assets governed by the same terms will plummet in value is not only an externality. Risk allocation among parties might improve if scrutiny of existing securities boilerplate improves. The terms can evolve.

  • A requirement to craft unique, artisanal terms—disclosures, subordination provisions ("flip clauses"), choice of governing law—for each individual securities transaction would be criminally inefficient.

  • A requirement to craft unique contract terms might even be unjustified on risk-management terms alone, because it would increase drafting errors.

It's tricky to mitigate the risks of securities boilerplate.

Some options for places to start:

  1. Validation by third parties: perhaps issuers could use risk-rated contract templates. For example, see credit ratings…but see credit ratings.
  2. Culture: inculcate systemic risk mitigation as a professional norm among private sector lawyers? In principle, this could work. The number of lawyers who draft these contracts is pretty small. In practice, one could envision many complications.
  3. Insurance: encourage the development of derivatives to account for the possibility of boilerplate shock? Like some of the other solutions, this one presumes some agreement on what terms create the risk of boilerplate shock. It could also encourage new forms of moral hazard.
  4. Mandatory regulation: some public entity could be tasked with the mission of proactively identifying and combating the risk of boilerplate shock in contract practices. Arguably a natural choice given that the risk is an externality. Nevertheless, I’m a little skeptical. First of all, who would do it? A domestic regulator, like the SEC or CFTC, that might be dodged on jurisdictional grounds? An international institution, which is arguably more subject to capture? More generally, regulation seems like a heavy-handed first choice.

In sum, when standardized and aggregated, choices that determine legal risks—e.g., contract terms designating governing law, payment priority—can create the same hazards as choices about business risks. This suggests that contract terms should be taken seriously as possible sources of systemic risk alongside more familiar sources, like leverage and credit quality.

Securities contracts as a source of systemic risk—what do you think?

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March 07, 2014
More Monies, More Problems
Posted by Greg Shill

Duck tales    

 

 

 

 

 

 

 

© Disney, “Duck Tales”

I expressed concern in my last post that uniform contract terms could destabilize securities markets in unexpected ways. In a recent paper, I dub this risk “Boilerplate Shock.” The paper uses boilerplate terms in Eurozone sovereign bonds as a case study, but I argue that any market in which a lot of securities are governed by uniform contract terms is vulnerable to boilerplate shock. In this post, I will focus on the Eurozone and my proposed solution to the risk of boilerplate shock there.

One major problem is that no one really knows how to deal with sovereign debt obligations denominated in a currency that still exists but is no longer used by the debtor. A partial breakup of the European Monetary Union would trigger some question marks in commercial law and private international law (among other things).

In the Eurozone sovereign lending market, bond contracts typically contain standardized language specifying:

(a)  choice of governing law (often foreign), and
(b)  currency of payment (euros).

The combined effect of these clauses, I argue, is to render any country that departs the euro more likely to default on its debt. Whatever the impact of the departure itself, a forced default would make things much worse for Europe and the world economy.

Leading scholars have concluded or strongly suggested that a sovereign that changes currencies can redenominate (convert) its bonds to its new currency even where the contract is governed by foreign law (e.g., Philip Wood (p. 177), Michael Gruson (p. 456), Arthur Nussbaum (pp. 353-59), Robert Hockett (passim)). As a descriptive matter, I believe this to be a mistaken interpretation of New York (and probably English) private international law and commercial law (see “Boilerplate Shock” pp. 47-67). But normatively, I agree: a sovereign should be able to redenominate its bonds under certain circumstances. Among other things, the alternative would make currency union breakups far more dangerous than they already are.

In brief:

  • The prevailing consensus underestimates the risk that a departing Eurozone member’s attempt to redenominate its sovereign bonds into a new currency will be ruled a default.

  • Since the bonds of other struggling euro countries are largely governed by the same boilerplate terms ((a) and (b) above), this misapprehension has the potential to be particularly damaging. In addition to surprising the market (which appears to incorporate this consensus), it is likely to spread beyond the immediate debtor to the bonds of similarly situated countries that have issued under the same terms.

  • Same for CDSs (which are likewise often governed by foreign law, usually New York).

  • Thus, given the widespread use of terms (a) and (b), a ruling that a departing country cannot pay its euro-denominated contracts in a new currency could cause the market to demand unsustainable premiums from other weak debtors.

  • This could cause Eurozone countries to lose market access. Greece is not TBTF in any sense, but some of its neighbors are—and are also too big for the EU (including the ECB) and IMF to bail out. Italy (the world’s 9th largest economy) and Spain (13th) come to mind.

Thus, if my commercial law/private international law analysis is right, these boilerplate contracts could end up playing quite a big role in the event of any euro breakup. 

To mitigate this risk of boilerplate shock, I suggest a new rule of contract interpretation. The proposal is detailed at pp. 67-71 of the article. I suggest commercially significant jurisdictions adopt it by statute. Here is a quick summary.

Any sovereign that:

  1. Belongs to an international monetary union, and
  2. Issues bonds in the currency of that monetary union subsequent to the adoption of this rule, and
  3. Leaves the monetary union and introduces its own currency,

shall retain the right to redenominate its bond obligations into its new currency, UNLESS the sovereign has affirmatively waived the right to redenominate its bonds.

You’ll notice this is a default rule—merely a presumption of the right to redenominate—not a mandatory rule. It is also prospective-only: it does not apply to existing issuances. It also does not protect sovereigns that issue in foreign currency (e.g., Argentina), only those that are monetary union members and issue in the common currency (e.g., France).

The reason for these limitations is to minimize unintended consequences and near-term disruption to the market, but also to embody the relatively modest objectives of the rule. It is an information-forcing default rule that is intended to facilitate better risk management by parties. It is not a “save the world” rule.

The challenge, as I’ll discuss in my next post on the paper, is not that redenomination would be ruled impermissible when it ought to be available (otherwise, that might suggest a mandatory “pro-redenomination” rule). It is that the likely effect of these boilerplate terms—to prohibit redenomination—was almost certainly not bargained for and is largely unknown to parties. This market failure has, in turn, created latent risks to the broader financial system and the existing legal tools are poorly suited to address them.

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March 03, 2014
The Risks of "Boilerplate Shock" in the Eurozone and Beyond
Posted by Greg Shill

By now, the risk that a distressed European nation such as Greece might leave the Eurozone and thereby spark global economic calamity is well known. Regular readers of this blog may even privately relish the prominence of the issue. Not since the days of the gold standard has international monetary policy come so close to being a socially acceptable topic of dinner conversation.

As I noted in my first post, observers rightly perceive the Eurozone sovereign debt crisis to be driven by political and economic forces. But many consequences of a euro breakup would be determined by law, including sources of American (specifically New York) private law.

This is a complex issue. I try to address it more fully in a new article, "Boilerplate Shock," which I've just posted on SSRN.

In brief, and to continue picking on Greece, one key question in the event of a euro breakup would be: would a court recognize an attempt by Greece to convert its euro-denominated debt into its new currency, or would it instead insist that Greece pay in euros, the currency of contract? The answer is important because, as a practical matter, requiring payment in euro would be tantamount to forcing a default.

That's the familiar narrative, anyway. And I agree. But I believe that the ubiquity of boilerplate terms in these bonds—specifically, clauses selecting governing law (usually foreign) and currency of payment (euro)—is likely to make any dispute over redenomination even more damaging than this suggests.

In the article, I argue that the sparse literature on the question of redenominating sovereign bonds overlooks some sources—especially cases interpreting New York contract law and private international law—that, if extended to Eurozone sovereign bonds, could surprise the market and cause serious global repercussions. I argue that the reason for this is not only that the dominant view overlooks what are likely controlling sources of law. It is that standardization of contract terms across the Eurozone sovereign lending market makes the stakes of surprise that much higher.

If Greece's attempt to redenominate its bonds is declared a default, then the fact that the operative terms in Italian, Spanish, Irish, etc. sovereign bonds are the same or similar makes markets likely to demand unsustainable premiums from those countries. Capital and investor flight could be very rapid. We have seen several previews of this movie over the past few years in the Eurozone, and each time official-sector bailout institutions have saved the day. But the European Union/European Central Bank and IMF probably do not have the resources to stop a broad-based bank run of this nature, to say nothing of the political support necessary to attempt it.

Maybe none of that will happen. Nevertheless, the potential for uniform contract terms to create risk not just to individual third parties but to securities markets seems likely to grow at least as fast as those markets. Using Eurozone sovereign bonds as a case study, I introduce the term "boilerplate shock" to describe the potential for standardized contract terms—when they come to govern the entire market for a given security—to transform an isolated default on a single contract into a threat to the market of which it is a part, and, possibly, to the economy in general. My larger objective here is to foster a discussion of the potential for securities law and private-sector securities lawyers to manage (or alternatively, to contribute to) systemic risk.

I've posted an abstract below and will be returning to the subject. I look forward your comments.

Boilerplate Shock abstract:

No nation was spared in the recent global downturn, but several Eurozone countries arguably took the hardest punch, and they are still down. Doubts about the solvency of Greece, Spain, and some of their neighbors are making it more likely that the euro will break up. Observers fear a single departure and sovereign debt default might set off a “bank run” on the common European currency, with devastating regional and global consequences.

What mechanisms are available to address—or ideally, to prevent—such a disaster?

One unlikely candidate is boilerplate language in the contracts that govern sovereign bonds. As suggested by the term “boilerplate,” these are provisions that have not been given a great deal of thought. And yet they have the potential to be a powerful tool in confronting the threat of a global economic conflagration—or in fanning the flames.

Scholars currently believe that a country departing the Eurozone could convert its debt obligations to a new currency, thereby rendering its debt burden manageable and staving off default. However, this Article argues that these boilerplate terms—specifically, clauses specifying the law that governs the bond and the currency in which it will be paid—would likely prevent such a result. Instead, the courts most likely to interpret these terms would probably declare a departing country’s effort to repay a sovereign bond in its new currency a default.

A default would inflict damage far beyond the immediate parties. Not only would it surprise the market, it would be taken to predict the future of other struggling European countries’ debt obligations, because they are largely governed by the same boilerplate terms.  The possibility of such a result therefore increases the risk that a single nation’s departure from the euro will bring down the currency and trigger a global meltdown.

To mitigate this risk, this Article proposes a new rule of contract interpretation that would allow a sovereign bond to be paid in the borrower’s new currency under certain circumstances. It also introduces the phrase “boilerplate shock” to describe the potential for standardized contract terms drafted by lawyers—when they come to dominate the entire market for a given security—to transform an isolated default on a single contract into a threat to the broader economy. Beyond the immediate crisis in the Eurozone, the Article urges scholars, policymakers, and practitioners to address the potential for boilerplate shock in securities markets to damage the global economy.

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February 27, 2014
Laughter, Transcriptology, And The FOMC
Posted by David Zaring

Over at DealBook, I’ve got a piece on the analysis of FOMC transcripts – a cottage industry, now that the Bernanke era version of the committee has released its 2008 (that is, depth of the crisis) records.  There’s lots of counting that can be done, including some, in honor of Jay Wexler’s Supreme Court study, on the number of times the FOMC broke into laughter.  Easy enough to actually do for the Greenspan FOMC, and so I do it:

For what it is worth, the mood lightened as the chairman aged, although the F.O.M.C. certainly went through turbulent times during both the beginning and the end of Mr. Greenspan’s tenure. Meeting transcribers recorded laughter on a per-transcript-page basis increasing from an average of less than 20 percent from 1988 to 1992 to more than 20 percent from 2001 to 2006. In a few years, we will be able to make comparable statements about the F.O.M.C. when Ben S. Bernanke was the Fed chairman. Mr. Greenspan used wit far more than any other single Fed official (although he spoke far more at F.O.M.C. meetings than the others did) – laughter ensued after something he said 556 times over the course of his tenure.

Do give it a look.

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February 24, 2014
Welcoming Greg, And Thinking About Financial Crisis Litigation
Posted by David Zaring

Below you'll see the first of what I suspect will be many interesting posts from guest blogger Greg Shill.  Do welcome him.

And here you'll see a neat graphic of the money that the big American banks are agreeing to pay to settle their financial crisis suits; the tl;dr is poor Bank of America!  Here's USC's worthy effort to track all the settlements.

 

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Should Legal Scholars Refrain from Writing about Macroeconomics?
Posted by Greg Shill

Yellen_janet Draghi

Greetings, Glommers! (and hello, Janet and Mario*!)

It’s an honor to join this extremely sharp and thoughtful community of corporate and commercial law scholars for the next two weeks.  The Conglomerate has long been one of my favorite law blogs and it’s truly a privilege to walk among these folks for a time (if a bit daunting to follow not just them but Urska Velikonja and her excellent guest posts).  Thanks to Gordon, David, and their Glom partners for inviting me to contribute.

By way of biographical introduction, I’m currently a Visiting Assistant Professor at the University of Denver Sturm College of Law, where I teach International Business Transactions and International Commercial Arbitration.  Last year, I did a VAP at Hofstra Law School (and taught Bus Orgs and Contracts).

In the next few weeks, I’ll be exploring a number of issues related to law and global finance.  I have a particular interest in currencies and monetary law, or the law governing monetary policy.  Two of my current projects (on which more soon) address legal aspects of critical macroeconomic policy questions that have emerged since 2008: U.S. monetary policy and the Eurozone sovereign debt crisis.

Without further ado, I will take a page from Urska and kick off my residency here with a somewhat meta question: should scholars refrain from writing about legal issues in macroeconomics, specifically monetary policy?

One thinks of monetary policy decisions—whether or not to raise interest rates, purchase billions of dollars of securities on the secondary market ("quantitative easing"), devalue or change a currency—as fundamentally driven by political and economic factors, not law.  And of course they are.  But the law has a lot to say about them and their consequences, and legal scholarship has been pretty quiet on this.

Some concrete examples of the types of questions I’m talking about would be:

  • Pursuant to its dual mandate (to maintain price stability and full employment), what kinds of measures can the Federal Reserve legally undertake for the purpose of promoting full employment?  More generally, what are the Fed’s legal constraints?
  • What recognition should American courts extend to an attempt by a departing Eurozone member state to redenominate its sovereign debt into a new currency?

When it comes to issues like these, it is probably even more true than usual that law defines the boundaries of policy.  Legal constraints in the context of U.S. monetary policy appear fairly robust even in times of crisis.  For example, policymakers themselves often cite law as a major constraint when speaking of the tools available to the Federal Reserve in combating unemployment and deflation post-2008.  Leading economics commentators do too.  Yet commentary on “Fed law” is grossly underdeveloped.  With the exception of a handful of impressive works (e.g., by Colleen Baker and Peter Conti-Brown), legal academics have largely left commentary on the Fed and macroeconomics to the econ crowd.

A different sort of abstention characterizes legal scholarship on the euro crisis.  Unlike the question of Fed power, there is a burgeoning literature on various “what-if” euro break-up scenarios.  But this writing tends to focus on the impact on individual debtors and creditors, not on the cumulative impact on the global financial system.  Again, the macro element is missing.

It is curious that so many legal scholars would voluntarily absent themselves from monetary policy debates.  The subtext is that monetary policy questions are either normatively or descriptively beyond the realm of law.  If that is scholars’ actual view, I think it is misguided.  But maybe the silence is not as revealing as all that.

  1. One issue is sources.  You will not find a lot of useful caselaw on the Fed’s mandate or the Federal Reserve Act of 1913, and the relevant statutes and regulations are not very illuminating.  Further, it’s a secretive institution and that makes any research (legal or otherwise) on its inner workings challenging.

  2. Another issue is focus.  Arguably the natural home of legal scholarship on domestic monetary issues, for example, should be administrative law.  But the admin scholarly gestalt is not generally as econ-centric as, say, securities law.  Meanwhile, securities scholars tend to focus on microeconomic issues like management-shareholder dynamics.

  3. A final possibility, at least in the international realm, is historical.  After World War II, Bretton Woods established a legal framework intended to minimize the chance that monetary policy would again be used as a weapon of war.  The Bretton Woods system collapsed over forty years ago, the giants of international monetary law (Frederick Mann, Arthur Nussbaum) wrote (and died) during the twentieth century, and now even some of the leading scholars who followed in their footsteps have passed away.  At the same time, capital now flows freely across borders and global financial regulation has become less legalized in general.  These factors plus the decline of exchange-rate regulations (most countries let their currencies float) may have undermined scholars’ interest in monetary law.  But as the ongoing euro saga demonstrates, international monetary law and institutions remain as critical as ever.

These are some possible explanations for why legal scholars have largely neglected questions of monetary law, but I’m sure I’ve overlooked others.  What do you think?

*Pictured are Janet Yellen and Mario Draghi, chiefs, respectively, of the Federal Reserve and the European Central Bank.

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February 11, 2014
Better Markets v. USDOJ On The JPMorgan Settlement: Defining Frivolous Down
Posted by David Zaring

Better Markets is an advocacy group worried about the failure of the government to hold banks accountable for misdeeds that lead to the financial crisis.  No problem there, I'm mystified by it myself, though there might be a normative case to be made for the policy, depending on how you feel about how the government treated Arthur Andersen and varous Enron executives during the last crisis.

But the group's suit against the government for violating separation of powers principles and FIRREA for settling with JPMorgan without filing the settlement with a court must have made the lawyers who filed the complaint a little nervous, in the "is this frivolous and will I get sanctioned?" kind of way.

Are you depriving courts of their Article III jurisdiction if you settle a case, instead of trying it to completion (and presumably then filing an appeal)?  Owen Fiss thought so, in an article that I really love, but perhaps we should put the piece under the "seminal Yale thought experiment" rubric.  

Settlement isn't exactly unprecedented in our federal system.  Sometimes the government announces that it won't be defending a statute like DOMA in court, thereby depriving the judges of their Article III powers to assess the constitutionality of the law.  Sometimes it changes policies when a powerful senator complains, thereby depriving Congress of its Article I right to reverse the executive branch's overreaching through legislation.  And sometimes it enforces statutes - Title VII is an example - that deprive millions of potential plaintiffs of their right to file constitutional suits, in that case invoking the Equal Protection Clause.  Sometimes, it also just settles cases before they go to trial, just like every other institution in America.  

And yet somehow these dramatic examples of executive branch overreaching have never resulted in a colorable separation of powers claim.  Indeed, separation of powers claims are almost never colorable; as a rule of thumb, they are step one towards losing a lawsuit, because they can be made about all cases, which is basically the same thing as saying they can be made about no cases.  I'm generally not a fan of holding the government to particularly different standards than, say, Amnesty International, but even if you feel differently, you might do so because of the government's criminal powers, which the JPMorgan settlement doesn't involve.

The FIRREA count isn't a whit better, by the way.  FIRREA authorizes the Attorney General to file suits against banks who violate the substantive principles of that banking statute.  But just because a statute permits such litigation hardly means that it means that courts will be reviewing the AG's decisions as to whether to bring a case under it or not.  THAT would be a separation of powers problem; courts would get to micromanage every decision whether to prosecute a case, supposedly one of the most core executive branch functions there is.  Just ask Justice Scalia. 

And don't even get me started on whether Better Markets has standing to sue over a settlement between the government and some other party that has nothing to do with Better Markets.

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January 22, 2014
The State Of Insurance Supervision
Posted by David Zaring

Over in DealBook, I look at the state of insurance supervision, as the Treasury Department has done in its blue ribbon report.  A taste:

Part of what has moved Treasury officials is an effort to keep up with the globalization of insurance supervision. Europe responded to the crisis by overhauling the way it looks after its industry, with renewed attention to its ability to survive financial shocks, and the empowerment of a continent-wide insurance supervisor. The European Union’s so-called Solvency II framework, moreover, raises the specter that Europe may use it solvency rules to keep foreign insurers out of European markets, on the grounds that they are too risky to trust with the money of European consumers. That threat, among other things, means that copies of the European approach are taking root across the world.

But keeping pace with Europe doesn’t work well with the American system of insurance regulation, where the federal role is minimal and each state has a different regulatory regime.

And you can find the whole thing over here.

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January 19, 2014
How you resolve financial crises determines how you regulate going forward
Posted by Erik Gerding

Nathaniel Popper’s story this week in the New York Times on the state of banking Iceland underscores how history makes a mess of neat divisions between financial crisis containment/resolution on the one hand and financial regulation for crisis prevention on the other.  The Times article does not delve extensively into Icelandic regulation, but this report outlines some of the dramatic changes in that country’s financial regulatory architecture since 2008 (see pages 17-21).  Iceland chose to let banks fail, and its financial services sector and its approach to regulation continues to reflect that choice. 

The following insight may sound obvious to the uninitiated: the path that a country chooses to deal with a financial crisis shapes the course that regulation will take after the crisis ends.  Even so, there remains a stark divide in scholarship between the study of regulation in normal times and the management of financial crises in not-so-normal times.  Management of a financial crisis reflects not just ad hoc decision-making under fire, but also clear policy and value choices of what the legal landscape should look like when the earth stops shaking. 

This story with respect to the United States can be told with much more nuance than simply equating the bail-out of big banks with the government green-lighting business as usual on Wall Street.  Disaggregating the “bailout” into its constituent parts – not just TARP, but also a series of bespoke interventions and an array of Federal Reserve facilities – reveals the extraordinary lengths the government went to in order to preserve the shadow banking system (a topic I’ve been writing about for a while and that appears in my new book) as it was.

Christian Johnson’s chapter on the Federal Reserve and Section 13(3) (which appears in this excellent edited volume) provides a travel guide to these government interventions.  Consider the least known aspects of the government intervention, the Federal Reserve facilities that provided guarantees and liquidity to various financial markets during the crisis.  Chewing through the letters of this alphabet soup – from ABCPMMMFLF (asset-backed commercial paper money market mutual fund liquidity facility) to TALF (Term Asset- Backed Securities Loan Facility) – it becomes clear that the government attempted to save securitization, money-market mutual funds and other shadow banking markets.  How did the Federal Reserve accomplish this?   It created complex structures that essentially replicated the mechanics of shadow banking.  In essence, the government became sponsor to one after another mammoth securitization vehicles.

And now the Economist tells us that securitization is back!

What’s the problem?  To start with, with these interventions, the government essentially adapted the same tools governments have used to fight banking crises throughout history to fight the (the first (so far)) shadow banking crisis.  What were the government interventions – both equity infusions, loans, and guarantees – if not deposit insurance for shadow banking investments, the government acting as liquidity-provider-of-last-resort to shadow markets, and the government resolving institutions that failed because of shadow banking investments.  However, the government offered all these forms of relief without acting like a bank regulator – charging an appropriate premium for insurance or loans or wiping out shareholders of failed institutions.

So we had a shadow system that performed the same functions as banks, posed the same risks as banks, suffered runs and failed just like banks, was rescued just like banks, but was never regulated like banks.  (For more on the role of regulation in fueling the shadow banking bubble, see Chapters 10 and 11 of my book).

And now that securitization has returned, the continuing failure of financial reform to address the risks of shadow banking has become even more worrisome.  What me worry?  We can’t have another crisis so soon after a bubble popped?  The financial industry and its advocates hate the term shadow banking.  Why?  Because disaggregating the financial crisis into various technocratic failures, allows them to say the problem has been fixed by the bubble gum (pun half-intended) and shoe string patchwork of financial reforms, and even to argue that this patchwork goes too far.  

To return to lesson of Iceland: the course of financial reform may have been set in the first responses to crisis management.  We could see that the government wanted to preserve shadow banking.  And a second lesson from Iceland: the government’s success in preventing a deeper crisis likely took the political wind out of the sails of deeper and more effective financial reform.

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January 15, 2014
My new book: Law, Bubbles, and Financial Regulation
Posted by Erik Gerding

After over four years of work, my book Law, Bubbles, and Financial Regulation came out at the end of 2013.  You can read a longer description of the book at the Harvard Corporate Governance blog.  Blurbs from Liaquat Ahamed, Michael Barr, Margaret Blair, Frank Partnoy, and Nouriel Roubini are on the Routledge’s web site and the book's Amazon page. The introductory chapter is available for free on ssrn.

Look for a Conglomerate book club on the book on the first week of February!

Permalink | Books| Comparative Law| Corporate Law| Economics| Finance| Financial Crisis| Financial Institutions| Law & Economics| Legal History| Legal Scholarship| Securities| White Collar Crime| Wisdom and Virtue | Comments (0) | TrackBack (0) | Bookmark

January 13, 2014
How Should Multinational Resolution Authority Work?
Posted by David Zaring

One of the many disasters of the financial crisis involved the bankruptcy of Lehman Brothers, which was marked by a race to the courthouse doors by creditors in most places Lehman had a substantial number of assets.  It also, given the number of subsidiaries Lehman had created, was very complicated to discern even which assets were domiciled where.  

Anyway, the consensus has been that a cross border resolution regime for big banks is needed, in light of the Lehman problems.  But very little progress on this high priority of the G20's has been made.  All of which brings us to the latest speech by a German banker urging that a cross-border deal be arranged.  Does that mean a treaty?  Evidently not.  The German central bank thinks that agencies like the FDIC should come up with a cross-border resolution authority protocol, and that that should do it.

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December 20, 2013
Here's JPMorgan's Complaint Against The FDIC
Posted by David Zaring

Essentially, the firm, and its Sullivan and Cromwell lawyers, are arguing that the FDIC has breached its contract in inducing the firm to buy up Washington Mutual.  That contract, it is argued, provided an indemnity for the thrift's legal liabilities.  The key issue is whether JPMorgan "expressly assumed" those liaiblities when it bought WaMu.  If it didn't, the FDIC might have.  I am no contract expert, but I do not find this argument to be uncompelling.

Here's the relevant language from the complaint:

the FDIC-Receiver agreed to indemnify JPMC for, among other things, "any and all costs, losses, liabilities, expenses (including attorneys' fees) ... , judgments, fines and amounts paid in  settlement actually and reasonably incurred in connection with claims against [JPMC]" insofar as they are:

• "based on liabilities of [WMB] that are not assumed by [JPMC] pursuant to this Agreement." (P&A § 12.1.)

• "based on any action or inaction prior to Bank Closing of the Failed Bank, its directors, officers, employees or agents as such, or any Subsidiary or Affiliate of the Failed Bank, or the directors, officers, employees or agents as such of such Subsidiary or Affiliate."
(Id.§ 12.l(a)(4).)

• "based on the rights of any creditor as such of the Failed Bank, or any creditor as such of any director, officer, employee or agent of the Failed Bank or any Affiliate of the Failed Bank, with respect to any indebtedness or other obligation of the Failed Bank or any Affiliate of the Failed Bank arising prior to Bank Closing." (/d. § 12.1(a)(2).)

HT: Jennifer Taub.  And happy holidays!

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