Regulation by threat: Dodd-Frank and the nonbank problem

Daniel Schwarcz, David Zaring

Research output: Contribution to journalArticlepeer-review

7 Scopus citations

Abstract

A central lesson of the global financial crisis is that banks are not the only financial firms that can endanger the broader financial system. The Dodd-Frank Act responded to this reality by empowering a council of financial regulators to designate individual nonbank financial institutions as systemically risky. Although the Financial Stability Oversight Council (FSOC) has exercised this authority only four times, it has occasioned controversy in court, in Congress, and among commentators. And with Donald Trump's 2016 presidential victory, FSOC's designation authority is now in danger of being radically altered or terminated completely. This Article defends the FSOC designation scheme, arguing that its critics misunderstand the mechanisms by which it helps to reduce systemic risk outside the banking sector. FSOC designation does not, and cannot, precisely identify firms that could pose a systemic risk to the financial system. FSOC's broad discretion to impose costly sanctions on designated firms instead advances two quite different goals. First, it deters nonbank firms from seeking out systemically risky strategies or activities. Second, it holds financial regulators to account by threatening to intrude on their regulatory turf if they fail to address systemic risk on their own. We term this approach "regulation by threat" and suggest that it is appropriate when risks are hard to identify, the perils of mistake are great, and the downsides of misdiagnosis extreme. Moreover, we argue that the council's discretion is better cabined by its structure-which features diverse membership, voting, review, and political safeguards-than by insistence on "hard look" judicial review or a cost-benefit requirement for individual designation decisions. The council offers a useful alternative mechanism to standard approaches to regulation.

Original languageEnglish (US)
Pages (from-to)1813-1881
Number of pages69
JournalUniversity of Chicago Law Review
Volume84
Issue number4
StatePublished - Sep 1 2017

Bibliographical note

Funding Information:
54 On the former point, see Senate Permanent Subcommittee on Investigations, Wall Street and the Financial Crisis: Anatomy of a Financial Collapse *11 (Apr 13, 2011) (“Levin-Coburn Report”), archived at http://perma.cc/Z268-KBC3 (“Investment banks were the driving force behind the structured finance products that provided a steady stream of funding for lenders originating high risk, poor quality loans and that magnified risk throughout the U.S. financial system.”).

Funding Information:
Dodd-Frank grants FSOC expansive authority to collect and analyze information relating to systemic risk and to recommend regulatory or legislative reforms to Congress, federal and state agencies, and the public more generally.103 For instance, FSOC enjoys a broad range of data-gathering and data-analysis tools, the most important of which is its authority to provide direction to, and request data from, the Office of Financial Research (OFR), an independent bureau within the Treasury Department.104 Similarly, FSOC must annually report and testify to Congress on a host of issues, including regulatory developments and its recommendations for improving financial stability.105

Funding Information:
15See Financial Stability Oversight Council (FSOC), archived at http://perma.cc/V4VE-T2GK (“The Council is charged with identifying risks to the financial stability of the United States; promoting market discipline; and responding to emerging risks to the stability of the United States’ financial system.”).

Publisher Copyright:
© 2017 by The University of Chicago.

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