REGULATION FOR THE AGES TRACING THE ARC OF FINANCIAL REGULATION
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1 REGULATION FOR THE AGES TRACING THE ARC OF FINANCIAL REGULATION Moderator: Laura Posner - New Jersey Bureau of Securities Panelists: James R. Barth - Auburn University James D. Cox - Duke University School of Law Eric Dinallo - Debevoise & Plimpton
2 HARVEY PITT, BLOOMBERG NEWS, SEPTEMBER 19, 2008 Congress, by failing to modernize financial regulation when it deregulated the financial-services industry in the 1990s, left the SEC and other regulators without the tools to regulate new markets and securities as they arose. In essence what we have is a 21st century financial system and a 19th century regulatory system.
3 FINANCIAL CRISIS INQUIRY COMMISSION FINAL REPORT, JANUARY 2011, PP. XX - XXVII In the early part of the 20th century, we erected a series of protections to provide a bulwark against the panics that had regularly plagued America s banking system in the 20 th century. Yet, over the past 30-plus years, we permitted the growth of a shadow banking system that rivaled the size of the traditional banking system. Key components of the market were hidden from view, without the protections we had constructed to prevent financial meltdowns. We had a 21 st Century financial system with 19 th -Century safeguards. [Today s] financial system... bears little resemblance to that of our parents generation. The financial markets have become increasingly globalized. Technology has transformed the efficiency, speed, and complexity of financial instruments and transactions. There is broader access to and lower costs of financing than ever before. And the financial sector itself has become a much more dominant force in our economy. When this Commission began its work 18-months ago, some imagined that the events of 2008 and their consequences would be well behind us by the time we issued this report. Yet more than two years after the federal government intervened in an unprecedented manner in our financial markets our financial system is, in many respects, still unchanged from what existed on the eve of the crisis.
4 HISTORY OF U.S. FINANCIAL CRISES: MORE FEDERAL REGULATORS WITH MORE POWER
5 THE U.S. FINANCIAL REGULATORY STRUCTURE!
6 SINGLE SUPERVISORY AUTHORITY PREDOMINATES
7 MAJORITY OF COUNTRIES RELY ON CENTRAL BANK AS A SUPERVISOR Africa (33 countries) Americas (21 countries) Asia/Pacific (31 countries) Europe (39 countries) Offshore Centers (26 countries) Central Bank only Central Bank Among Multiple Supervisors Central Bank Not a Supervisory Authority ( 68 countries) (21 countries) (61 countries) Botswana Guinea Sudan Morocco Nigeria Algeria Congo Madagascar Burundi Lesotho Swaziland Benin Côte d'ivoire Mali Egypt Namibia Tunisia Burkina Faso Equatorial Guinea Niger Gambia Rwanda Zimbabwe Cameroon Gabon Senegal Ghana South Africa Central African Republic Guinea Bissau Togo Chad Kenya Argentina Guyana Trinidad and Tobago United States Bolivia Ecuador Nicaragua Brazil Suriname Uruguay Canada El Salvador Paraguay Chile Guatemala Peru Colombia Honduras Venezuela Costa Rica Mexico Bhutan Kyrgyzstan Samoa China Thailand Australia Korea Lebanon Cambodia Malaysia Saudi Arabia Taiwan, China Japan Fiji New Zealand Singapore Hong Kong, China Pakistan Sri Lanka India Papua New Guinea Tajikistan Israel Philippines Tonga Jordan Qatar Turkmenistan Kuwait Russia United Arab Emirates Armenia Ireland Romania Albania Macedonia Austria France Poland Azerbaijan Italy Serbia & Montenegro Czech Republic Slovakia Belgium Hungary Sweden Belarus Lithuania Slovenia Germany Bosnia and Herzegovina Iceland Switzerland Bulgaria Moldova Spain Denmark Latvia Turkey Croatia Netherlands Ukraine Estonia Luxembourg United Kingdom Greece Portugal Finland Norway Aruba Macau, China Oman Anguilla Montserrat British Virgin Islands Isle of Man Malta Bahrain Mauritius Seychelles Antigua and Barbuda Saint Kitts and Nevis Gibraltar Jersey Panama Belize Commonwealth of Dominica Saint Lucia Guernsey Liechtenstein Puerto Rico Cyprus Saint Vincent and The Grenadines Grenada Vanuatu
8 FINANCIAL CRISIS INQUIRY COMMISSION FINAL REPORT, JANUARY 2011, PP For years [prior to the Crisis], states tried to clamp down on the predatory mortgages proliferating in the subprime market. The national thrifts and banks and their federal regulators the OTS and OCC, respectively resisted the states efforts to regulate those national banks and thrifts. In 2003, as the market for riskier subprime and Alt-A loans grew, and as lenders piled on more risk with smaller down payments, reduced documentation requirements, interest-only loans, and payment-option loans, the OCC fired a salvo, propos[ing] strong preemption rules for national banks, nearly identical to earlier OTS rules that empowered nationally chartered thrifts to disregard state consumer laws. Once OCC and OTS preemption was in place, the two federal agencies were the only regulators with the power to prohibit abusive lending practices by national banks and thrifts and their direct subsidiaries.
9 LISA MADIGAN, FINANCIAL CRISIS INQUIRY COMMISSION FINAL REPORT, JANUARY 2011, PP. 113 Even as the Fed was doing little to protect consumers and our financial system from the effects of predatory lending, the OCC and OTS were actively engaged in a campaign to thwart state efforts to avert the coming crisis.... In the wake of the federal regulators push to curtail state authority, many of the largest mortgage-lenders shed their state licenses and sought shelter behind the shield of a national charter. And I think that it is no coincidence that the era of expanded federal preemption gave rise to the worst lending abuses in our nation s history.
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