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.
- 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.
- 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.
- 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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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.
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.
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.
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!
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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.
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."
• "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!
For those of you wanting to keep tabs on the soon-to-be-final Volcker Rule, here are some important links. Here is the fact sheet (released today). Here is the board memo accompanying the final rule from yesterday. The full proposed rule as printed in the Federal Register.
In a nutshell, the rule will prohibit "banking entities" from engaging in "proprietary trading" and owning "covered entities." The meat, of course is in the definitions and exceptions. The term "banking entity" is going to basically cover any bank holding company or other insured depository institution operating in the U.S., including affiliates, subsidiaries, parent companies, etc. Nonbank financial companies are exempt from these prohibitions but may be subject to other capital requirements. Proprietary trading activites are prohibited, but market-making, risk-mitigating hedging, underwriting and trades necessary to provide liquidity are exempt. Certain investments in covered entities, hedge funds and private equity funds, are exempt. And the kicker -- executives have to certify that the bank has "taken steps" to comply with the rule, though they don't have to certify actual compliance.
So, will this take away the benefits of being a BHC for Goldman and Morgan Stanley? Maybe, though I read at least one commentator say that should these "too big to fail" entities opt out, regulators could just change the definition of "bank entity" to include "systemically important financial institutions" (SIFIs).
Hard to believe, but the Volcker Rule was proposed in 2011. Here is a great series of posts by friend of the Glom Kim Krawiec on the making of the Volcker Rule.
Finally, if you want a good read on the very profitable road from matching customer trades to proprietary trading, The Partnership: The Making of Goldman Sachs, is a very interesting read.
The $13 billion dollar settlement with JPMorgan over violations made by companies it bought during the financial crisis appears to be all but final. You may think it is a much-awaited example of finally getting tough with financial institutions, but you may also be wondering about the fairness of it all. Were these bankers doing things that are different from other bankers? Why aren't those other bankers paying commensurate fines? Is this like the LIBOR scandal, where many banks were involved but only one, Barclays, paid with the loss of its CEO?
It is like that. But if you want to make peace with this sort of government enforcement, here is how you do so:
- Making an example. These sorts of enforcement actions tend to amount to a form of the original meaning of the term decimation. The idea is that the dramatic punishment of a few will deter the many, which means that those singled out can expect - maybe reasonably, even as they bemoan their bad luck - severity.
- Limited resources. But building a case is difficult, and so the government is wise to concentrate on the famous, given that it cannot hope to enforce against everyone - the Wesley Snipes principle, if you like. JPMorgan is the most famous of the banks, the most in the news, and therefore the most tempting target if your goal is to maximize the impact of a necessarily limited set of enforcement actions.
- Contract misrepresentation damages. Half the settlement is not so much a fine as it is compensation to misled investors. In this sense, part of that big number is very much simply a measure of an expectancy not realized. It is that sort of remedy that you'd think would most likely be paralleled in proceedings, perhaps initiated by private parties, against other banks.
I don't mind the occasional bailout. For financial institutions, unless you're headed into a depression, they often don't lose the government money; instead you hang onto volatile assets until they mature, and when they mature, volatile instruments become more predictable. And often there isn't an alternative to bailing out an important financial intermediary, either. That doesn't mean you celebrate bank bailouts; the loss of discipline on the banks - that is a terrible thing. But it often ends up being the bitter you have to take with the not so sweet, but not so sour either. They do not have to be massive money losers - just time-to-repayment shifters.
Still, we knew that industrial company bailouts might present their own problems. And Treasury hasn't held onto GM long enough for it to bounce back (nor is it obvious that that would eventually happen):
Treasury would need to get $147.95 on its remaining shares to break even. That’s not going to happen: GM’s stock closed Wednesday at $35.80, up $0.21, or 1 percent. At current trading prices, the government’s remaining stake is worth about $3.6 billion. At current stock prices, taxpayers would lose about $10 billion on the bailout when all the stock is unloaded.
Earlier this month, Treasury reported it sold $570.1 million in General Motors Co. stock in September, as it looks to complete its exit from the Detroit automaker in the coming six months. The Treasury says it has recouped $36 billion of its $49.5 billion bailout in the Detroit automaker. The government began selling off its remaining 101.3 million shares in GM on Sept. 26, as part of its third written trading plan.
It will lose $9 billionish on the deal. It isn't obvious to me that Treasury has interfered overly with the corporate governance of the auto companies once it took them over. But it did insist on the divestment of a ton of auto franchises, may have pressed GM to sell Volts, and, in the end, lost money. That's not exactly a record to celebrate, even if you do conclude that some sort of intervention was necessary.
I've been watching the various bailout takings suits against the US government with interest. There are two in particular that are proceeding apace. One is a suit by Chrysler and GM auto dealers who lost their franchises, in their view at the behest of the government, in exchange for the bailout of those companies. Those plaintiffs have done well before the Court of Federal Claims, but will have to defend their efforts in an appeal certified to the Federal Circuit next month.
The other is a suit by Starr, Inc., controlled by Hank Greenberg, the former CEO of, and major stockholder in, AIG, againt the government for imposing disproporionate pain on AIG owners vis a vis other financial institutions that received a bailout. That case has also done well before the CFC, and is now in discovery. And David Boies, Greenberg's lawyer, hasn't kidding around about the discovery, either. He has already deposed Hank Paulson and Tim Geithner on what they knew (presumably a lot), about the decision to structure the AIG bailout the way they did, and he noticed a deposition of Ben Bernanke that required the government to use a mandamus appeal to quash it, which it semi-successfully did last week.
It wasn't a thoroughly convincing quashing, though. High ranking officials in office aren't supposed to be deposed, except when there is a showing of extraordinary circumstances, for two reasons. It's disruptive, and it interferes with the deliberative processes of government.
These concerns go away, however, when you leave government. As the Federal Circuit said, "There appears to be no substantial prejudice to Starr in postponing the deposition of Chairman Bernanke, if one occurs, until after he leaves his post. The deadline for discovery should, if necessary, be extended beyond the current close on December 20, 2013, for that purpose."
I'm not sure that Bernanke's deliberative process will actually tell the Starr plaintiffs very much about their case. With takings claims, the focus is on what the government did, and whether that constituted a taking, rather than on why it did it. A deposition might offer some details on whether the government was imposing a cost on particular people that should have been borne ratably by the taxpayers, which is what the takings clause is supposed to protect (Starr would probably like Bernanke to say that the government zeroed out AIG shareholders to punish them for failing to make sure their firm was being operated cautiously, for example). But again, the question is whether, not why.
It does mean, however, that Bernanke can be pretty sure of at least one thing when he leaves the Fed. He'll soon be under oath, testifying about the reasons why the AIG bailout was structured the way it was.
Bloomberg has done the arithmetic, and it appears that US banks have paid over $100 billion in legal costs in the wake of the financial crisis. Half of that is going to mortgage settlements, a number that must increase, if JPMorgan's impending $11 billion settlement is for real.
Those burdens have not been spread equally:
JPMorgan and Bank of America bore about 75 percent of the total costs, according to the figures compiled from company reports. JPMorgan devoted $21.3 billion to legal fees and litigation since the start of 2008, more than any other lender, and added $8.1 billion to reserves for mortgage buybacks, filings show.
Most of this constitutes compliance fines and contract damages - and the latter presumably would have been paid if the contracts had been executed correctly. But the costs of processing these payments suggest that there is at least one legal sector with plenty to do. HT: Counterparties.
A former trader with Goldman Sachs, Steven Mandis, is now spending time at Columbia Business School, and has written a very business schooley book about change at the company. It might be the kind of thing you'd like, if you like that sort of thing. Peter Lattman provides the overview:
Mr. Mandis said that the two popular explanations for what might have caused a shift in Goldman’s culture — its 1999 initial public offering and subsequent focus on proprietary trading — were only part of the explanation. Instead, Mr. Mandis deploys a sociological theory called “organizational drift” to explain the company’s evolution.
These changes included the shift to a public company structure, a move that limited Goldman executives’ personal exposure to risk and shifted it to shareholders. The I.P.O. also put pressure on the bank to grow, causing trading to become a more dominant focus. And Goldman’s rapid growth led to more potential for conflicts of interest and not putting clients’ interests first, Mr. Mandis says.
It's coming out from and Havard Business Press Books, which is basically an arm of HBS's distinctive revenue generator. Most of that revenue comes from cases sold for b school classes, to be sure, but Mr. Mandis can hope that he will have a hit on his hands.