July 21, 2010
Dodd-Frank Forum: a second dose of moderation
Posted by Erik Gerding

Here is a second round of questions for our Masters based on yesterday’s posts, or what I like to call “Put your favorite law professors on the spot!”:

Christine: What grade would you give to the Dodd-Frank provisions designed to make sure the SEC doesn’t drop the ball with future Madoffs? Do the provisions, including the bounty, ensure the SEC does the enforcement job it already has? Are there lessons for making other financial regulators more accountable and diligent? Are you worried about overzealous enforcement now?

Kim: Congress seeking to take credit and shift blame is not unique to financial regulation. It happens all the time in national security. What to do? Are reforms to the legislative process in order? Is it the job of courts to hold Congress’s feet to the fire? Maybe strike down overbroad or vague provisions and send them back to Congress? Or is that too draconian?

Larry: Do you take any comfort in the fact that Wall Street firms have the resources, incentives, and opportunities –either in the regulatory process, litigation, or subsequent litigation – to trim back the provisions you find to be overkill?  Under your (and Butler's) proposals for continued state regulation of insurance, should bond insurance be an exception in which the feds take charge?

Lisa: Is there any value to a non-binding shareholder vote? You write: “Ultimately, if the reform bill has managed to make proxy access a reality, then at the very least it will be responsible for finally resolving the long-standing debate about the benefits of such access. Time will tell if such a resolution is a good or bad thing.” How would we judge whether proxy access is a success? Is success for the agency cost argument for broader shareholder access to the ballot easier to measure than for the broader stakeholder argument? Which of these two sides to proxy access stands to gain more from Dodd-Frank?

Michelle: What do you think of Mark Roe’s argument that providing various exemptions in Ch. 11 (from the automatic stay) for derivative counterparties exacerbated the crisis?  Did these exemptions warp the incentives of derivatives counterparties to monitor and discipline debtors? Is this a hole in Dodd-Frank?

Mike: You wrote: In this respect, [Brandeis] would probably applaud the Goldman Sachs case brought by the SEC more than the Dodd-Frank Act. In the Goldman Sachs case, Brandeis would see that the SEC got it just right. “ What deterrence value do you think the SEC-Goldman settlement will have? Turning back to Dodd-Frank, do you think it is time to revisit the regulatory distinction between derivatives and securities?

Renee: To play devil's advocate: does a statute need a big idea or it it acceptable to find that lots of factors contributed to the crisis and it was prudential  for Congress to address a number of them? 

Usha: You had one of the more provocative titles to a post yesterday: “Are Shareholders the Problem or the Solution?” What would be your answer to the question? Do you buy Leo Strine’s argument that we should be concerned about shareholders with a short-term focus exercising too much power?

To everyone: Here are a few questions to put you on the spot.

  • Would you have voted for the Act?
  • What grade would you give the Act?
  • Will the Act make it into your lesson plans?

Masters: Dodd-Frank | Bookmark

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