November 04, 2009
Regulating Derivatives, as a Question of Defining Them
Posted by David Zaring

A brief break from the Jones v. Harris dialogue to point you to this letter from Barney Frank updating everyone on where the derivatives regulation legislation stands.  The broader angle, I suppose, is that there is a question as to who should be defining exactly what financial products should/must be cleared on an exchange.  

Congress could define what should be included, it could delegate that task to the CFTC, SEC, or both, or it could leave that task to the exchanges/clearinghouses themselves.  Frank's letter suggests that Congress will be doing a bit more defining than it has in the past, but will also leave much of the rest of the definition to the agencies, rather than the exchanges - even though one of those agencies, the CFTC, doesn't appear to want the responsibility.

Making legislation is complicated, like sausage, and the blow by blow is interesting mostly to the shadow enforcement world of private regulators who can assure their clients about what Congress meant, even though appellate courts would be unlikely to bother with every jot and tittle of every letter.  Perhaps that is reason enough for the rest of us to give things at least a passing glance.

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