Epiphanyblog

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On creating new financial regulations

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This morning while scanning the NY Times for news and interesting, little known information, I discovered an abstract by Jennifer Taub of the University of Mass. at Amherst. In Enablers of Exuberance: Legal Acts and Omissions that Facilitated the Global Financial Crisis, Ms Taub argues that the financial market crash of 2008 is the direct result of a deregulation based more on an ideological idea that on sound and realistic fiscal policies. In the abstract, she writes:

After the bust, these Legal Enablers helped the middlemen to not just walk away unscathed, but wealthier than ever, and to leave the rest of society bereft. Uncertainty about the bankruptcy treatment of complex instruments and transnational structures made commercial bankruptcy through Chapter 11 less viable, thus the “middlemen” financial firms received massive taxpayer-funded bailouts. Meanwhile, Chapter 13 after the 1993 Court decision, prevented consumers from down-sizing underwater mortgages. Finally, the ability for ultimate investors to seek redress has been eroded through securities laws changes and legal doctrines shielding fiduciaries from liability.

This paper contends that if we wish to restore investor confidence and sustain a stable financial system, we must stop enabling the excessive leverage and speculation that create cycles of irrational exuberance followed by financial panics. Specifically, it recommends that we eliminate the loopholes that allow unregistered investment pools broad discretion to operate in the shadows, without transparency or supervision, to engage in self-dealing or related-party transactions, to inaccurately value and inadequately protect assets and to take on excessive leverage and illiquid portfolio holdings. This surpasses the Obama Administration’s proposal to bring hedge fund advisers under the Investment Advisers Act. In addition to the disclosure and enforcement that would affect hedge funds and advisers under that bill, this paper recommends revisiting the substantive protections of the Investment Company Act that apply to mutual funds. While the federal securities laws generally used mandated disclosure and enforcement as tools to regulate conduct, the country learned in 1929 and again in 2008 that regarding investment pools, disclosure is not enough. Substantive restrictions are more effective tools to protect pools of other people’s money. As part of this recommendation, the myth of the sophisticated investor and the private offering are confronted.

Second, this paper suggests that we avoid allowing devices, like credit default swaps, initially designed to minimize and distribute risk to be used for speculation or gambling. Third, it advises that we change our Bankruptcy Code to allow lien-stripping under Chapter 7 and 13, thus discouraging poor underwriting and inflated home valuations and protect the most vulnerable from the impact of the financial system abuses. Fourth, we should remove the obstacles that shield corporate officers, directors and others from liability for enabling destructive behavior.

This paper will also address the arguments that might be offered that would resist these reforms. These include, among others: (1) that we should not regulate hedge funds because they did not cause the GFC; (2) sophisticated investors can take care of themselves; (3) human nature (i.e. greed) cannot be successful constrained; (4) government regulation is ineffective and undermines business growth; (5) lien-stripping is too expensive and creates moral hazard; and (6) one should not second guess the behavior of corporate directors and managers trying to operate in the midst of a market-wide correction or collapse.

The crisis has passed but the problems that caused the crash remain. Nothing has changed and Wall St. has returned to the same old behavior that led to the crash. And the gatekeepers still don’t know what to do.

With all the Tea Parties crowds screaming about the deficit, the ruination of the economy, the loss of jobs and retirement funds and socialism, the time to revise regulatory laws is ripe to restore confidence in financial markets and the power of the government to keep the players honest.

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Written by Valerie Curl

September 17, 2009 at 12:02 PM

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