Faculty Bibliography

Cloud services have become an important part of the information technology toolkit in the global financial sector. As cloud adoption by financial institutions has increased, financial regulators have raised concerns about potential concentration risk resulting from cloud migration.2 This report aims to provide clarity around the discussion of cloud adoption and concentration risk in the financial sector. Section I of the report provides background on cloud adoption in the financial sector. Section II clarifies the potential risks associated with the use of third-party technology service providers by financial institutions, and examines those risks in the context of cloud adoption and traditional information technology (IT) infrastructure. Section III outlines the regulatory frameworks in different jurisdictions for addressing potential concentration risks associated with cloud adoption. Section IV concludes by setting out policy recommendations for mitigating potential concentration risks associated with cloud adoption in the financial sector. The report has several key takeaways: • Concentration risk is not new to the financial sector, nor is it unique to the cloud. Indeed, it is not obvious that such risks could be avoided if financial institutions were to rely on traditional IT infrastructure instead of the cloud. The critical question is how to manage or mitigate concentration risk. • In order to assess the landscape of concentration risk in the financial sector, regulators should develop a clear and consistent definition of concentration risk and the underlying scenarios to which that definition applies. • Regulators should also focus on gathering information about technology outsourcing by financial institutions, including the use of cloud-based services. Concentration risk can be addressed through information sharing and coordination among FIs, cloud providers, and supervisory authorities. • Cloud adoption in the financial sector is still in its early stages. As cloud adoption increases, regulators should weigh the risks of concentration against the benefits of scale and quality of services provided by major cloud providers. • In developing regulatory and supervisory approaches, regulators should engage directly with cloud providers in order to understand the tools available to financial institutions and the security and resiliency practice of cloud providers. • Regulatory requirements and supervisory practices for cloud adoption should be tailored to specific risks and a one-size-fits-all approach should not be adopted for all financial institutions.

In March 2023 Silicon Valley Bank, the 16th largest bank in the United States, was forced into FDIC-administered receivership and sold to a private acquirer after it experienced a bank run of a size and speed that were unprecedented in U.S. banking history. Its failure set off runs on two other large U.S. banks, Signature and First Republic, which were also forced into receivership and sold to private acquirers. Though each bank sought liquidity from the Federal Reserve as the lender of last resort, in no case was the lender of last resort successful in averting the bank’s collapse. This article seeks to understand why. We document operational, procedural, and policy flaws in the design of the lender of last resort function and the manner in which it was deployed by banking agencies. We find that these flaws rendered the lender of last resort function ineffective in preventing contagion arising from a liquidity crisis, the very purpose for which it was intended. We then make eleven recommendations for how policymakers can improve the lender of last resort function so that it can prevent the recurrence of similar crises.

This is the first in a series of reports by the Program on International Financial Systems dedicated to cryptoassets (also referred to as “digital assets”). This initial report defines and describes cryptoassets and the market structure for trading cryptoassets in the United States. It also provides an overview of the U.S. regulatory structure for the issuance and trading of cryptoassets and related financial products. A subsequent report will provide specific recommendations for improving the regulation of cryptoassets in the United States.In recent months, U.S. government officials have sharpened their focus on the policy issues raised by cryptoassets. For example, in fall 2022, U.S. financial regulators released a set of four reports on digital assets pursuant to the Biden Administration’s Executive Order 14067. The three Treasury Department reports address (1) the potential role of a central bank digital currency (“CBDC”) in the U.S. system of money and payments, (2) the implications for consumers, investors, and businesses from cryptoassets, and (3) countering the use of cryptoassets in illicit financing. In October 2022, the Financial Stability Oversight Council issued a report addressing the interconnectedness between cryptoasset markets and other financial markets and the financial stability risks arising from those connections. Our report is unique and complementary to these efforts in being the first to provide a comprehensive review of the market structure for trading cryptoassets and the regulation of cryptoassets in the United States.We also note that our report follows the November 2022 failure of Bahamian-based cryptoasset trading platform FTX, formerly the third largest such platform by global volume. The failure of FTX, which had U.S. operations and many U.S. investors and customers, underscores the timely need for enhanced public understanding of the market structure for trading cryptoassets and the regulation of cryptoassets in the United States.

Securities regulators seem to be more interested in protecting their turf than protecting investors.

A central function of the central bank is to act as the lender of last resort. Why did it fail to do so?

This report is the second in a series of reports by the Program on International Financial Systems on enhancing the market structure for trading U.S. Treasuries (“cash Treasuries”). In this report, we assess whether policymakers should mandate the public dissemination of comprehensive real-time transaction-level data in cash Treasury markets.As described in the first report in this series, the March 2020 stress in cash Treasury markets and the September 2019 Treasury repo market spike were strong indications that Treasury markets are vulnerable to severe bouts of illiquidity that can threaten the broader financial system. Measures to strengthen the liquidity and resiliency of Treasury markets should therefore be a priority for U.S. policymakers.Policymakers and market participants have recently voiced support for mandatory post-trade transparency in cash Treasury markets. The Group of Thirty, an international body of current and former regulators, academics, and market participants, recommended in its 2021 report on Treasury markets that real-time transaction-specific data on cash Treasuries should be made public in a manner similar to the way that data on U.S. corporate bond transactions are currently disclosed. And Securities and Exchange Commission (“SEC”) Chairman Gary Gensler indicated in a speech this year that “[p]ost-trade transparency promotes liquidity and helps investors” and recommended that the Financial Industry Regulatory Authority (“FINRA”) consider publishing transaction-specific Trade Reporting and Compliance Engine (“TRACE”) data on cash Treasuries. Legislation has also been proposed that would bring comprehensive post-trade transparency to the cash Treasury markets.This report provides a unique survey of the current structure of cash Treasury markets and relevant academic literature on the effects of mandatory post-trade transparency. Part I describes the extent of pre- and post-trade transparency in cash Treasury markets, finding that pre- and post-trade data in cash Treasury markets is available only on a limited and fragmented basis.Part II evaluates the academic literature on the effects of mandatory real-time post-trade transparency in various asset classes, including corporate bonds, municipal bonds, and agency mortgage-backed securities, finding that post-trade transparency increases liquidity, reduces transaction costs, and enhances price efficiency. We therefore conclude that U.S. policymakers should mandate the public dissemination of real-time transaction-level data in cash Treasury markets.

This report is the third in a series of reports by the Program on International Financial Systems on enhancing the market structure for trading U.S. Treasuries (“cash Treasuries”) and for repurchase agreements of U.S. Treasuries (“Treasury repos”). In this report, we describe the Federal Reserve’s domestic standing Treasury repo facility and consider whether expanding access to the standing Treasury repo facility would enhance the liquidity and stability of U.S. Treasury markets, as has been argued by financial market experts.

Our report begins by providing an overview of the costs and benefits of cloud technology for financial companies; we find that cloud technology can offer significant benefits to financial companies. We then describe the current regulatory frameworks that apply to financial institutions’ use of third-party technology providers, including cloud service providers, in various jurisdictions. Next, we describe key provisions of DORA that apply to cloud and other technology service providers and how such provisions are similar to or diverge from the current frameworks described in the previous section. We conclude by recommending that the EU revise DORA in certain key respects to better align with the approach in other jurisdictions as DORA’s divergences from other jurisdictions’ regulation of cloud and other third-party technology services may unnecessarily discourage the adoption of such services by financial companies.

Executive Summary: In this paper, we evaluate the regulatory structure for risk management at U.S. banking institutions as compared to technology companies. We also evaluate the appropriate regulatory structure for cloud service providers to U.S. banking institutions, as banking institutions are increasing their reliance on cloud service providers for their data needs and effective risk management regulation can safely facilitate that transition.Part I of our paper provides a comprehensive review of the regulation of corporate governance and risk management at U.S. banking institutions with a focus on how the regulatory structure is tailored to address the business activities of U.S. banks. We find that the regulation of risk management processes by U.S. banking institutions is highly prescriptive and that U.S. banking regulators have centralized key risk management responsibilities with the board of directors and senior management.Part II of our paper reviews the regulation of corporate governance and risk management at U.S. technology companies. We find that the regulation of risk management at technology companies is principles-based and does not shift prescriptive responsibilities to technology companies’ board of directors.Part III of our paper considers whether the banking approach to the regulation of risk management or the technology approach to the regulation of risk management is better suited for cloud service providers to U.S. banks. In doing so, we consider key differences between the risks faced by U.S. banking institutions as compared to cloud service providers. We conclude that a principles-based and decentralized approach to the regulation and supervision of cloud service providers and other technology services providers to U.S. banking institutions would better address the risks inherent in such services and facilitate continued adoption of cloud services by U.S. banking institutions.

The research staff of the Program on International Financial Systems (“PIFS”) has conducted a three-phase comparative analysis of international equity market structure regulation in the five major global equity trading markets. The five markets include the People’s Republic of China (including both the Mainland market and the Hong Kong Special Administrative Region), the European Union, Japan and the United States, which collectively represent 90% of global equity trading market volume. This report represents the third phase of our international equity market structure review. In Phase I, we reviewed the regulation of equity market structure in each of the five major jurisdictions. The purpose of this phase was to inform the public and policymakers as to key similarities and differences among the regulatory regimes. In Phase II, we set forth a quantitative analysis of equity trading in the five markets, including a summary of market characteristics, as well as an overview of the performance of each market for investors, measured primarily by institutional trading costs. The purpose of this phase was to assess the performance in each of the five major markets. We found that each of these markets performs well for institutional investors and demonstrates a positive five-year trend. We also noted certain cost differences among the markets. In Phase III, we will assess key similarities and differences between the regulatory structures outlined in Phase I and their impact on performance measures quantified in Phase II. Our goal is to provide policymakers with guidance as to best practices for regulating equity market structure. We list our policy recommendations at the end of the Executive Summary. The first part of Phase III describes the equity market regulations common across all five major markets, each of which contribute to their jurisdiction’s strong performance for investors. These regulations include (i) broker-dealer best execution obligations, (ii) regulation of trading venues, including exchange fees, (iii) public reporting requirements for executed trades, and (iv) volatility controls. We then review the performance of each of the five major markets, illustrating the relatively low transaction costs prevalent in each of the markets. In addition, we note the positive trend in each of the markets with respect to these performance measures. This part concludes by recommending that policymakers in other jurisdictions that lack these regulations implement the four core features of equity market regulation that are common across the five major trading markets. The second part of Phase III notes the differences in average transactions costs among the five major jurisdictions and then discusses key regulatory differences between the E.U. and U.S. markets and their counterparts in Mainland China, Hong Kong, and Japan, including: (i) market decentralization and competition among trading venues, (ii) dark trading as a complement to lit trading, and (iii) electronic, algorithmic and high frequency trading activity. Each of these discussions includes a literature review of empirical research on the link between the specific market characteristic and overall market performance. The E.U. and U.S. markets demonstrate that competition among trading venues, an appropriate balance of dark and lit trading and a framework that facilitates electronic, algorithmic and high frequency trading are key components of transparent, resilient and efficient equity markets. We therefore believe that policymakers should consider creating a regulatory framework to foster evolution of such trading activity. As demonstrated throughout PIFS’ series of reports on international equity market structure, regulations in place in the E.U. and U.S. can provide guidance as to the appropriate regulatory structure. Although certain emerging markets have low levels of liquidity and thus may not yet be sufficiently developed to fully benefit from an immediate transition to trading venue competition, dark trading (as a complement to lit trading) or electronic, algorithmic and high frequency trading, we believe that it is incumbent on policymakers in all jurisdictions to evaluate how their markets could benefit from a modernized regulatory framework that can enhance liquidity and investor outcomes.

In this report, the Committee on Capital Markets Regulation (the “Committee”) describes the turmoil in the U.S. Treasury market during March 2020, with a focus on the unexpected rise in Treasury yields, the illiquidity in the Treasury market and the subsequent intervention by the Federal Reserve to stabilize the market. We then describe the market structure for trading U.S. Treasuries as well as trade reporting requirements and public information regarding the owners of Treasuries. We find that policymakers and the public lack the transaction data to comprehensively determine the source of selling in March 2020 that drove the volatility in the U.S. Treasury market. Policymakers have sought to identify the source of the selling pressure in the Treasury market in March 2020 because holders of U.S. Treasuries, including large financial institutions and foreign investors, rely on the assumption that Treasuries are cash-like instruments.1 For U.S. Treasuries to continue to function as a global safe haven asset, Treasuries must retain their value and trade efficiently during market crises. Identifying the source of the selling pressure in March 2020 would enable policymakers to determine whether changes to regulation or market structure are necessary to allow the Treasury market to better accommodate such selling in the future. In-deed, understanding the potential sources of fragility in the Treasury market remains important, as periodic bouts of volatility persist—most recently in February 2021.2 In Part I of our report, we summarize the volatility in the U.S. Treasury market in March 2020 and the Federal Reserve’s role in stabilizing the market. In Part II, we provide a comprehensive overview of the market structure for trading U.S. Treasuries (so-called “cash Treasury” markets), including the respective role of broker-dealers, proprietary trading firms, institutional inves-tors and trading venues. Part II then describes the trade information for U.S. Treasuries available to regulators from the Financial Industry Regulatory Authority’s Trade Reporting and Compliance Engine (“FINRA’s TRACE database”). Finally, in Part III we evaluate public disclosures of ownership information and trade data for U.S. Treasuries, including data provided by the Federal Reserve and U.S. Treasury Department regarding institutional investors, foreign investors and foreign official investors (such as central banks and sovereign wealth funds). We also review public disclosures regarding the U.S. Treasury holdings of hedge funds and mutual funds. We conclude that policymakers and the public lack the trade and ownership information necessary to comprehensively determine the source of selling in the Treasury market in March 2020. We therefore recommend that policymakers exercise caution before reaching conclusions or enacting regulations related to the March 2020 spike in Treasury yields. An appropriate first step for policymakers would be to consider whether expanded reporting obligations for participants in the U.S. Treasury market are warranted. In addition, policymakers should continue to study activity in the U.S. Treasury market to determine whether other reforms could enhance its efficiency, resiliency and transparency.

This report is the first in a series of reports by the Program on International Financial Systems on enhancing the market structure for trading U.S. Treasuries (“cash Treasuries”) and for repurchase agreements of U.S. Treasuries (“Treasury repos”). In this report, we assess whether policymakers should mandate central clearing in both markets. In future reports we will consider whether policymakers should require the public disclosure of transaction-level data and evaluate design considerations for the standing Treasury repo facility.

This essay explores the evolution of my thinking on risky emergency lending to banks and non-banks. The Fed is now, in the Pandemic, engaging in lending with significant credit risk. While it appears these are Fed programs, in fact this lending is controlled by, and may be largely determined, by the Treasury. This is proper but should be clear. Lending with significant credit risk is a fiscal decision and should be made by the elected government not by an independent agency, whether made to banks or non-banks. And it should be the Treasury’s role, as advised by the Fed, to determine when there is significant credit risk. When there is no significant credit risk, the Fed should make the lending decision, without control or approval of the Treasury, again whether to banks or non-banks, as part of their role as liquidity supplier and lender of last resort. If there is disagreement as to whether there is significant credit risk the Treasury’s view should prevail.

While financial crises can be triggered by a number of causes, runs on short-term liabilities are at the heart of all financial crises with the recent 2007-2009 financial crisis being no exception. Given the unpredictability of crisis triggers and the overwhelming predictability of short-term funding’s role in financial crises, legislative and regulatory responses to the recent financial crisis should focus on controlling the problem of short-term funding in the financial system. However, in addressing the problem of short-term funding in the financial system, it is important to recognize the social benefits afforded by short-term liabilities and not simply the costs. To this end, this Article provides a brief overview of short-term funding in the U.S. financial system, while also highlighting the tradeoff between the costs and benefits of short-term liabilities. The Article proceeds with an analysis of various proposals aimed at addressing the short-term funding issue.

As financial institutions move their operations, including core functions, to the cloud, financial regulators have begun to issue regulations and informal guidance addressing the use of cloud services in the financial sector. These are typically based on the regulator’s existing framework for outsourcing by a financial institution to third-party technology providers, under which the risks associated with outsourcing and the supervision of third-party providers are primarily the responsibility of the financial institution. This report provides background on the use of cloud computing in the financial sector, reviews existing regulatory and supervisory frameworks for cloud use by financial institutions, and recommends improvements to those frameworks that could reduce obstacles to more widespread cloud adoption by financial institutions.

In recent years, U.S. companies have raised more equity through private offerings available only to institutional and high-net-worth investors than through initial public offerings (“IPOs”) that are available to the general public. The number of U.S. public companies has also been steadily declining, and private start-up companies are frequently reaching billion-dollar valuations without opening up to the public for investment. In this report, Expanding Opportunities for U.S. Investors and Retirees: Private Equity, we examine whether U.S. policymakers should expand access to investments in private companies through private equity funds. A private equity fund refers to an investment vehicle that invests in the securities of private companies and that is not registered with the Securities and Exchange Commission (“SEC”) as an investment company. Private equity funds include buyout funds that acquire controlling stakes in businesses and venture capital funds that invest in young private companies with high growth opportunities. We find that private equity funds have a well-established performance history that justifies expanding investor access to them. We recommend three ways to do so. First, legislative reforms to expand access to direct investments in private equity funds. Second, SEC reforms to expand access to public closed-end funds that invest in private equity funds. And finally, Department of Labor (“DOL”) reforms to facilitate the ability of 401(k) plans to invest in private equity funds.

In the last decade, public enforcement of the laws governing the U.S. financial system has received widespread attention, but neither policymakers, academics nor private institutions have produced a comprehensive overview and assessment of the public enforcement system for the U.S. financial system. This Report, Rationalizing Enforcement of the U.S. Financial System (the “Report”), attempts to do just that. While we make recommendations aimed at improving aspects of the enforcement system, the primary purpose of this Report is to lay out a succinct description for the public, policymakers, and others about how the enforcement system works. The Report is divided into four chapters: Chapter 1: Enhancing the Structure of the U.S. Enforcement System – Improving Coordination and Procedural Fairness; Chapter 2: Rationalizing the Setting of Sanctions; Chapter 3: Ensuring Appropriate Use of Monetary Sanctions; and Chapter 4: Promoting Individual Accountability. Chapter 1 describes the highly-fragmented structure of the U.S. public enforcement system and the potential for overlapping enforcement actions by multiple agencies resulting from the same underlying misconduct. We also describe the lack of laws and policies mandating coordination, with the DOJ’s new anti-“piling on” policy being a recent exception, and separately, the discretion some agencies have to engage in forum shopping by unilaterally selecting the forum in which they bring enforcement actions. The chapter sets forth recommendations to formalize and standardize coordination policies and limit the ability of agencies to engage in forum shopping. Chapter 2 sets forth the laws, rules and policies that guide and constrain the setting of monetary sanctions in enforcement actions. We explain that agencies generally have vast discretion in setting sanctions because statutes and policies provide limited practical constraints. We recommend that agencies develop core principles or guideposts to avoid arbitrary, inconsistent and disproportionate penalties. We then describe the byzantine approach many agencies take to publicly disclosing information about enforcement action outcomes and present our own data analysis on monetary sanctions over a 17-year period. The chapter concludes with recommendations for enhancing transparency of enforcement action outcomes. Chapter 3 describes how monetary sanctions collected in enforcement actions are spent. In particular, the chapter describes the lack of public disclosure and sets forth recommendations to increase transparency and appropriately restrict the use of collected monetary sanctions. Chapter 4 explores the issue of individual accountability. We find that while the government has significant legal and investigative tools to identify and hold culpable individuals and firms accountable, it can face more significant challenges with respect to individuals. We set forth recommendations that we believe will better enable enforcement authorities and firms to work together to identify culpable individuals and build successful cases against them.

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt out” rights or practical ability to avoid subsidizing corporate political expression with which they disagree. Nor do individuals have the practical option to refrain from putting their savings into equity investments, as doing so would impose damaging economic penalties and ignore conventional financial guidance for individual investors.Most individual shareholders cannot obtain full information about a corporation’s speech or political activities, even after the fact, nor can most shareholders prevent their savings from being used for political activity with which they disagree. More generally, the Court's focus on whether union non-members are effectively forced to fund political speech or activity with which they disagree should reflect the fact that most Americans must routinely fund speech with which they disagree. While some of this compulsion is from practical reality rather than law there are numerous examples outside the union context of laws that require individuals to fund expressive activities. There is, simply put, very little way for most individuals in modern America to avoid subsidizing speech with which they disagree.

The current framework governing emergency lending – including reforms to Federal Reserve lending enacted after the recent crisis – are inadequate and not credible. We propose reforms that would establish a credible framework of rules to constrain and guide emergency lending by the Federal Reserve and by fiscal authorities during a future financial crisis. Our proposed framework follows five overarching rules, informed by history, empirical evidence and theory, which would serve as the foundation on which detailed legislation should be constructed. Adequate assistance to financial institutions would be provided in systemic crises but would be limited in its form, and by the process that would govern its provision. Our framework would serve as a basis for establishing effective rules that would be credible, and that would properly balance the moral-hazard costs of emergency lending against the gains from avoiding systemic collapse of the financial system.

The SRISK measure has been used to measure the relative systemic risk for financial institutions, ranking some insurers as vulnerable as banks to large capital shortfalls in stressed macroeconomic environments. This paper argues that the assumptions underpinning the SRISK measure are inappropriate for insurers and hence do not depict an accurate representation of insurer systemic risk.

Well-functioning trading markets for stocks are critical to the U.S. economy because they promote the productive allocation of capital. They do so by establishing accurate prices for the shares of publicly traded companies and by enabling investors to efficiently enter and exit their investments. However, in recent years, a lack of understanding of our trading markets has fostered concerns that the markets are not functioning effectively for long-term investors. Some critics have even gone so far as to suggest that the equity markets are “rigged” against long-term investors. “The US Equity Markets: A Plan for Regulatory Reform” (“the Report”) addresses these concerns in two distinct ways. First, we seek to inform the public and policymakers about the U.S. equity market structure and evaluate its performance for U.S. investors and public companies. Second, we set forth twenty-six recommendations to enhance the performance of our equity markets. We note that the Securities and Exchange Commission (“SEC”) has the authority to implement all of our recommendations except for three that would require legislative change. These three recommendations are noted with an asterisk in the list below. To inform the public about our trading markets, we have conducted an empirical analysis of U.S. stock orders and executions over the past twenty years. This research allows us to reach conclusions as to how investors and public companies are faring in today’s markets. Overall, we find that our trading markets are performing very well for long-term investors. For example, we find that our markets are highly liquid and that investor transaction costs, as measured by bid-ask spreads, brokerage commissions and price impact, are at record lows. Additionally, instances of extreme volatility have been infrequent and isolated, and can be addressed by our recommendations. We also explain high frequency trading (“HFT”) strategies and “dark pools” and we review the academic literature on each. With regards to HFT strategies, we believe that they are best understood as modern variants of traditional market making and arbitrage strategies that have always existed in equity markets. These strategies can provide important benefits to markets—market making provides investors with liquidity and arbitrage improves the accuracy of stock prices. Our review of the academic literature on HFT strategies finds that they are generally associated with positive effects on market quality, particularly with respect to liquidity, price efficiency, and volatility. With regards to orders that are executed in the “dark,” we find that dark orders are often executed at a better price than the best publicly displayed price. However, our review of the academic literature on the relationship between dark trading and market quality is inconclusive. A number of studies find positive effects from dark trading, such as lower transaction costs, while several others find that dark trading can have negative effects, including a reduction in the accuracy of stock prices. In addition, we explain the key rules that govern trading in the U.S. stock market and their policy goals. These rules were last comprehensively revised over a decade ago and since then, our equity markets have dramatically changed. We explain how. Our recommendations to modernize the existing equity market structure rules are based on three underlying themes: (1) Increase transparency; (2) Strengthen resiliency; and (3) Lower transaction costs by enhancing competition. A list dividing our twenty-six recommendations into these three themes is included at the end of this statement. We hope that dividing our recommendations into these three groups will clarify the order in which policymakers should address our recommendations. Indeed, we strongly suggest that the SEC promptly acts on our recommendations to: (1) Increase transparency and (2) Strengthen resiliency. We believe that the benefits of these reforms to investors and public companies are clear and significant. Furthermore, these reforms should face limited opposition, in part because they do not affect the existing competitive balance between exchanges and broker-dealers. More specifically, the disclosure rules that apply to our equity markets are severely outdated, as they were implemented in 2000 when stocks primarily traded on the floor of an exchange. Enhanced disclosures by exchanges and “dark pools” would allow brokers to better identify the trading venues with the best prices. This will put more money in the pockets of investors, because brokers retain significant discretion about where they will send and execute a customer’s order. Brokers should also be subject to enhanced disclosure requirements so institutional and retail investors can determine whether their broker is getting the best prices for their orders. Strengthening the resiliency of U.S. equity markets would also improve investor confidence by reducing the likelihood of events like the May 6, 2010 “flash crash” or the volatility seen on August 24, 2015 (when hundreds of stocks did not open on time, were subject to multiple trading halts after opening and traded at highly volatile prices). Indeed, most of the existing volatility controls are relatively new, and recent events have provided us with the information that we need to enhance them. Finally, we expect that our recommendations to lower transaction costs by enhancing competition will be our most contentious recommendations. This is because certain of these recommendations are based on the view that stock exchanges have authorities that reduce competition and increase transaction costs for investors. Most notably, exchanges have control over the sources of market data. We therefore recommend that the SEC take incremental steps when possible. The use of pilot programs and independent studies could be especially valuable to ensure that these reforms have a solid analytical basis. Such an approach would promote both the effectiveness of the reforms and the legitimacy of the SEC’s actions. In conclusion, it is our strong view that now is the time for policymakers to act in the best interest of long-term investors by unleashing the benefits of transparent, resilient and competitive equity markets.

This article for the first time compares the Federal Reserve's powers as lender of last resort (LLR') and its ability to fight contagion, with its three major peers, the Bank of England (the BOE'), the European Central Bank (the ECB') and the Bank of Japan (the BOJ'). It concludes that the Federal Reserve (the Fed') is currently the weakest of the four, largely due to a hostile political environment for LLR powers, which are equated with bailouts, and restrictions placed by the 2010 Dodd-Frank Act on the Fed's ability to loan to non-banks, whose role in the financial system is ever-increasing. This is a concern for the global as well as the US financial system, given the economic importance of the United States and the use of the dollar as a reserve currency.

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt out” rights or practical ability to avoid subsidizing corporate political expression with which they disagree. Nor do individuals have the practical option to refrain from putting their savings into equity investments, as doing so would impose damaging economic penalties and ignore conventional financial guidance for individual investors.

Operational risk is fundamentally different from all other risks taken on by a bank. It is embedded in every activity and product of an institution, and in contrast to the conventional financial risks (eg market, credit) is harder to measure and model, and not straightforwardly eliminated through simple adjustments like selling off a position. While it varies considerably, operational risk tends to represent about 10–30 per cent of the total risk pie, and has grown rapidly since the 2008–2009 crisis. It tends to be more fat-tailed than other risks, and the data are poorer. As a result, models are fragile — small changes in the data have dramatic impacts on modelled output — and thus required operational risk capital is unstable. Yet the US regulatory capital regime, the central focus of this paper, is surprisingly more rigidly model-focused for this risk than for any other. The authors are especially concerned with the absence of incentives to invest in and improve business control processes through the granting of regulatory capital relief, and make three, not mutually exclusive, policy suggestions. First, address model fragility directly through regulatory anchoring of key model parameters, yet allow each bank to scale capital to their data using robust methodologies. Secondly, relax the current tight linkage between statistical model output and required regulatory capital, incentivising prudent risk management through joint use of scenarios and control factors in addition to data-based statistical models in setting regulatory capital. Thirdly, provide allowance for real risk transfer through an insurance credit to capital, encouraging more effective risk sharing through future product innovation. Until the understanding of operational risks increases, required regulatory capital should be based on methodologies that are simpler, more standardised, more stable and more robust.

This study engages in a detailed analysis of interconnectedness (i.e., the linkage between financial institutions) in the context of the failure of Lehman Brothers in October 2008 and concludes that interconnectedness was not a major cause of the recent financial crisis. The study continues with a discussion of financial contagion (i.e., run-like behavior that spreads from the perceived failure of a financial institution to other financial institutions) and an analysis of possible solutions to contagion. The study highlights that a distinguishing feature of contagion is its ability to spread indiscriminately among firms in the financial sector and notes that contagious runs can occur even if there are no direct linkages to the original institution (i.e., even in the absence of interconnectedness). The study comes to the conclusion that contagion was the primary cause of the financial crisis and that short-term funding in particular is the primary source of systemic instability. In the context of these conclusions, the study engages in a comprehensive and detailed analysis of the possible solutions to financial contagion. The solutions include: (i) capital requirements, (ii) liquidity requirements, (iii) resolution procedures, (iv) money market mutual fund reform, (v) lender of last resort, (vi) liability insurance and guarantees, and (vii) public bailouts. Each potential solution is discussed in detail with an evaluation of its effectiveness in addressing financial contagion.

This report by Hal S. Scott and the staff of the Committee on Capital Markets Regulation examines a balanced approach to capital regulation that enhances private market discipline while strengthening the complementary role of government-imposed capital requirements. A regulatory approach that recognizes the dual roles of government and the private market in setting appropriate capital levels at financial institutions will result in a stronger and safer financial system than can be achieved through public regulation alone. The approaches outlined in this paper will achieve the desired goal of a more robust financial system.

This article explores the importance of an efficient retail payment system and develops an integrated framework for evaluation of the retail payment system by policy makers. It examines the costs and benefits of the various types of retail payment system, focusing on the seven desirable benefits of the retail payment system: (1) finality and reversibility; (2) universality (ability to use at point of sale and remotely); (3) recordkeeping; (4) liquidity (maximizing interest earning assets); (5) security and safety; (6) financial inclusion and access; and (7) fungibility and ease of use (seven benefits). The article discusses the Coase Theorem, a proposition from transaction cost economics that provides a useful tool for analyzing transaction efficiency. Increased costs are not bad per se since parties are often willing to incur higher costs to achieve their desired results, e.g. higher costs for a more secure form of payment. Indeed, higher costs may often generate higher value to both parties to a transaction. What one wants to reduce are “friction” costs, costs that neither party wants to pay to achieve a desired result, e.g. higher costs produced by lack of information. While each retail payment system provides certain advantages, e.g. cash for small transactions, overall the analysis suggests that debit and credit cards represent the most desirable payment system for achieving the seven benefits set forth above. This is supported by statistics that indicate that retail payments have increasingly moved toward card payments.

Federal Rule of Civil Procedure 23 and the Private Securities Litigation Reform Act of 1995 (PSLRA)1 together govern securities class actions. These regimes provide that a class representative may bring a claim against a corporation on behalf of all investors who owned a security at a time when there was an alleged misstatement or failure to disclose a material fact that caused loss. By default all potential members of a class—all investors who owned the security during the relevant time (before the misstatement or omission was corrected)—are included in the class unless they take the affirmative step of opting out. Inertia, therefore, works to expand the class.

This study engages in a detailed analysis of interconnectedness (i.e., the linkage between financial institutions) in the context of the failure of Lehman Brothers in October 2008 and concludes that interconnectedness was not a major cause of the recent financial crisis. The study continues with a discussion of financial contagion (i.e., run-like behavior that spreads from the perceived failure of a financial institution to other financial institutions) and an analysis of possible solutions to contagion. The study highlights that a distinguishing feature of contagion is its ability to spread indiscriminately among firms in the financial sector and notes that contagious runs can occur even if there are no direct linkages to the original institution (i.e., even in the absence of interconnectedness). The study comes to the conclusion that contagion was the primary cause of the financial crisis and that short-term funding in particular is the primary source of systemic instability. In the context of these conclusions, the study engages in a comprehensive and detailed analysis of the possible solutions to financial contagion. The solutions include: (i) capital requirements, (ii) liquidity requirements, (iii) resolution procedures, (iv) money market mutual fund reform, (v) lender of last resort, (vi) liability insurance and guarantees, and (vii) public bailouts. Each potential solution is discussed in detail with an evaluation of its effectiveness in addressing financial contagion.

This paper examines the case for Member States withdrawing from the euro area (using Greece and Italy as examples), focusing on the economic benefits to exit and the operational and legal obstacles to doing so. It concludes that withdrawal is preferable to solely restructuring debt that remains denominated in euros. While both techniques can decrease debt burden, only withdrawal and establishment of a new currency allows for devaluation that can restore the competitiveness of economies. While some commentators fear the losses that devaluation might impose, particularly on European banks, the paper proposes using the European Union’s existing Exchange Rate Mechanism (ERM) to ensure that losses could be held to levels comparable to the debt haircut achieved through restructuring. This plan should be adopted now whether or not Greece uses it so it is in place for possible future withdrawals.

Papers and discussions presented at the fifth Alvin Hansen Symposium on Public Policy, held at Harvard University on April 30, 2009.

The United States economy is struggling to recover from its worst economic downturn since the Great Depression. After several huge doses of conventional macroeconomic stimulus – deficit-spending and monetary stimulus – policymakers are understandably eager to find innovative no-cost ways of sustaining growth both in the short and long runs. In response to this challenge, the Kauffman Foundation convened a number of America’s leading legal scholars and social scientists during the summer of 2010 to present and discuss their ideas for changing legal rules and policies to promote innovation and accelerate U.S. economic growth. This meeting led to the publication of Rules for Growth: Promoting Innovation and Growth Through Legal Reform, a comprehensive and groundbreaking volume of essays prescribing a new set of growth-promoting policies for policymakers, legal scholars, economists, and business men and women. Some of the top Rules include: Reforming U.S. immigration laws so that more high-skilled immigrants can launch businesses in the United States. Improving university technology licensing practices so university-generated innovation is more quickly and efficiently commercialized. Moving away from taxes on income that penalize risk-taking, innovation, and employment while shifting toward a more consumption-based tax system that encourages saving that funds investment. In addition, the research tax credit should be redesigned and made permanent. Overhauling local zoning rules to facilitate the formation of innovative companies. Urging judges to take a more expansive view of flexible business contracts that are increasingly used by innovative firms. Urging antitrust enforcers and courts to define markets more in global terms to reflect contemporary realities, resist antitrust enforcement from countries with less sound antitrust regimes, and prohibit industry trade protection and subsidies. Reforming the intellectual property system to allow for a post-grant opposition process and address the large patent application backlog by allowing applicants to pay for more rapid patent reviews. Authorizing corporate entities to form digitally and use software as a means for setting out agreements and bylaws governing corporate activities. The collective essays in the book propose a new way of thinking about the legal system that should be of interest to policymakers and academic scholars alike. Moreover, the ideas presented here, if embodied in law, would augment a sustained increase in U.S. economic growth, improving living standards for U.S. residents and for many in the rest of the world.