One aspect of the financial crisis not receiving much attention is the relative soundness of the smaller community banks that constitute a large part of our nation's banking system. Of course, a worsening recession could drag them down, too, and about two dozen community banks have failed this year, but they are generally fairly sound. Recent articles in a banking industry daily that I follow, The American Banker (available only by subscription) have noted out that about 1/3 of the banking industry (3,100 banks -- mostly smaller, community banks) has opted out of the Federal Deposit Insurance Corporation's offer of extra deposit insurance (for a price) until the end of 2009. Another article in today's American Banker ("Big Bank Troubles, Small-Bank Opportunity") discusses how "many smaller banking companies are well positioned to take advantage of market disruption by beefing up their staffs and entering into new lines of business. They also can capitalize on customer runoff, and the strongest ones are even scouting for branches or banks to buy."
I worry that the dramatic attention being given to the rescue of the financial institutions that are "too big to fail" is obscuring our appreciation of the value of our truly unique "dual banking system", in which a system of typically smaller, community-based state-chartered banks historically has provided a counterweight to the typically larger, increasingly regional or nation-wide federally-chartered banks. Significant federal regulation of the banking industry in response to the current crisis that is not sensitive to the position of state-chartered banks could significantly endanger the ongoing vitality of the dual banking system.
I recently published an article on the effect of a recent Supreme Court decision, Watters v. Wachovia on the delicate balance of federal versus state authority over consumer protection in banking services. Most of the article is an analysis of the evolution of federal preemption of state banking law, but the last section raises arguments of subsidiarity. Following is the abstract; you can find the article here.
Damming Watters: Channeling the Power of Federal Preemption of State Consumer Banking Laws, 35 Fla. St. U. L. Rev. 893 (2008)
Abstract:
In Watters v. Wachovia, 127 S. Ct. 1559 (2007), the Supreme Court reversed two presumptions about federal preemption of state law that historically have guided the delicate balance between state and federal authority over consumer protection in banking services - the presumption that issues involving consumer protection are quintessentially matters of state rather than federal prerogative and the presumption that national banks are subject to nondiscriminatory laws of the states where they are located, except where federal law expressly preempts such law.
This article analyzes the dramatic impact of Watters' reversal on two different areas - consumer protection in banking services and the continued vitality of the uniquely American dual banking system. The first part of the article traces the evolution of consumer protection law in the banking industry through three stages. The first was the gradual expansion of the preemptive effect of a particular federal usury statute for national banks through a combination of action by federal banking agencies and case law. The second stage was the assertion by federal banking regulators of a broad theoretical framework for federal preemption of state banking law based not on any particular federal statute, but rather on a theory of congressional intent to permit national banks to provide consistent banking services nationwide. The third stage was the validation of that broad conflict preemption theory by the Supreme Court in Watters. The article demonstrates how the reversal of the historic presumption has recently played itself out in the preemption of state laws governing bank-issued gift cards, culminating in the first citation of Watters in SPGGC, LLC v. Ayotte, 488 F.3d 525 (2nd Cir. 2007).
While challenging the proposition reflected in most recent scholarship in this area that federalization of consumer protection law necessarily entails deregulation, in this article I nevertheless conclude that Watters will have a significant adverse effect on the continued vitality of the dual banking system. Arguments for preserving the "dual banking system" arise out of our nation's fundamentally federalist sensibilities. From that perspective, a recent shift in the tenor of arguments for the preserving the dual banking system from the benefits of competition (states as laboratories of reform) to arguments based on the principle of subsidiarity (states as more responsive units of government where democratic ideals are more fully realized) can be observed. I argue that the subsidiarity arguments are likely to be more persuasive in convincing Congress to intervene to address the imbalance between the state and national banking system exacerbated by the Watters decision. I conclude by proposing that Congress partially reverse Watters by validating a recent proposal by the primary federal regulator of state banks to extend preemption authority to state banks, thus preserving to states the authority to offer a meaningful alternative to the national banking system on the level of consumer protection.
Friday, November 14, 2008
This is great news. It happened back in September, but somehow I missed it then. The Prenatally and Postnatally Diagnosed Conditions Awareness Act, (the Kennedy-Brownback bill) has now passed both the House and Senate. This report begins:
The House has joined the Senate in passing a measure that disability rights advocates hope will fundamentally change the conversations that are taking place between pregnant American women and their doctors.
Passed on a voice vote on Thursday, the bill would provide for accurate, up-to-date information and support for parents who receive a diagnosis of Down syndrome or other disabilities such as spina bifida or cystic fibrosis either prenatally or up to a year after the birth of their child. President Bush is expected to sign it.
Passage of the measure marks the culmination of an unprecedented bipartisan effort that has joined supporters of abortion rights, led by co-sponsor Sen. Edward M. Kennedy (D-Mass.), with opponents of abortion, led by co-sponsor Sen. Sam Brownback, and disability rights advocacy groups. Kennedy is also a longtime advocate for people with disabilities.
Tuesday, November 4, 2008
As vicious and bitter as the charges in this political season have gotten, we have not, it seems, reached the level of political rhetoric in Poland, where the judiciary had to intervene to settle the dispute over whether it was slanderous to refer to President Lech Kaczynski as a duck.
(Full disclosure: I take this very personally, since Kaczynski was my maiden name.)
UPDATE FROM A READER:
On the theme of ducks and campaigns, you may have seen this, a delightful book by the authors of "Click Clack Moo." (I've read it a few hundred times to my almost-two-year-old after getting a paperback copy in a box of Cheerios.) My favorite line: "He gave speeches that only other ducks could understand."
Friday, October 31, 2008
David Brooks suggests in a column in the NYT that one of the things the financial meltdown reveals is the inadequacy of economic and social theories based on the assumption that man does actually engage in rational calculation and maximizing self-interest. He cites Alan Greenspan:
As Alan Greenspan noted in his Congressional testimony last week, he was “shocked” that markets did not work as anticipated. “I made a mistake in presuming that the self-interests of organizations, specifically banks and others, were such as that they were best capable of protecting their own shareholders and their equity in the firms.”
Brooks goes on to argue that the fallacy in the economic models based on rational decision-making is their failure to consider the very first step in the decision-making chain -- our perception of the situation. He continues:
My sense is that this financial crisis is going to amount to a coming-out party for behavioral economists and others who are bringing sophisticated psychology to the realm of public policy. At least these folks have plausible explanations for why so many people could have been so gigantically wrong about the risks they were taking. . . .
And looking at the financial crisis, it is easy to see dozens of errors of perception. Traders misperceived the possibility of rare events. They got caught in social contagions and reinforced each other’s risk assessments. They failed to perceive how tightly linked global networks can transform small events into big disasters. . . .
If you start thinking about our faulty perceptions, the first thing you realize is that markets are not perfectly efficient, people are not always good guardians of their own self-interest and there might be limited circumstances when government could usefully slant the decision-making architecture (see “Nudge” by Thaler and Cass Sunstein for proposals). But the second thing you realize is that government officials are probably going to be even worse perceivers of reality than private business types. Their information feedback mechanism is more limited, and, being deeply politicized, they’re even more likely to filter inconvenient facts.
Over the past couple of years, I have thought that some of the most perceptive work being done in the area of consumer regulation is the application of behaviorial economics. See, e.g., "Consumer Contracts: Behavioral Economics vs. Neoclassical Economics", Oren Bar-Gill & Richard Epstein.
It also strikes me that behaviorial economics could almost be characterized as a personalist approach to economic theory -- trying to figure out how the individual human person actually reacts in the economic market, versus assuming rational self-interest. Does this make sense to any of you law and econ types?
Wednesday, October 29, 2008
Margaret Atwood recently published an interesting reflection on the financial crisis for the New York Times with a number of references to aspects of Catholic legal theory. Some excerpts:
. . . [W]e’re deluding ourselves if we assume that we can recover from the crisis of 2008 so quickly and easily simply by watching the Dow creep upward. The wounds go deeper than that. To heal them, we must repair the broken moral balance that let this chaos loose.
Debt — who owes what to whom, or to what, and how that debt gets paid — is a subject much larger than money. It has to do with our basic sense of fairness, a sense that is embedded in all of our exchanges with our fellow human beings.
and
We are social creatures who must interact for mutual benefit, and — the negative version — who harbor grudges when we feel we’ve been treated unfairly. Without a sense of fairness and also a level of trust, without a system of reciprocal altruism and tit-for-tat — one good turn deserves another, and so does one bad turn — no one would ever lend anything, as there would be no expectation of being paid back. And people would lie, cheat and steal with abandon, as there would be no punishments for such behavior.
and
Once you start looking at life through these spectacles, debtor-creditor relationships play out in fascinating ways. In many religions, for instance. The version of the Lord’s Prayer I memorized as a child included the line, “Forgive us our debts as we forgive our debtors.” In Aramaic, the language that Jesus himself spoke, the word for “debt” and the word for “sin” are the same. And although many people assume that “debts” in these contexts refer to spiritual debts or trespasses, debts are also considered sins. If you don’t pay back what’s owed, you cause harm to others.
The fairness essential to debt and redemption is reflected in the afterlives of many religions, in which crimes unpunished in this world get their comeuppance in the next. For instance, hell, in Dante’s “Divine Comedy,” is the place where absolutely everything is remembered by those in torment, whereas in heaven you forget your personal self and who still owes you five bucks and instead turn to the contemplation of selfless Being.
I find her reflections on the human dimension of the crisis interesting, but the Dante reference confuses me a bit. Is she suggesting we'd all be more heavenly if we just ignored the crisis and prayed right now? Should Catholic members of Congress have voted against the recent bail-out (or at least abstained), and devoted themselves instead to prayer? Or is the bail-out an example of heavenly willingness to forgive people their debts?
Monday, October 27, 2008
We've discussed in the past many Catholic schools' selectivity when it comes to accepting students with disabilities. I don't know the exact statistics, but I have to assume the ability to exclude kids with special needs (an option not available to public schools) is one of the reasons that, as John wrote in his recent post , "many private schools spend far less on their students than do public schools with much better results." It's clearly more expensive to educate kids with special needs -- that's typically the reason many Catholic schools give for not accepting them -- and they tend not to deliver the same sorts of measurable "results" as "typical" kids. Are the parochial schools in inner city Chicago more welcoming of kids with disabilities, too? I hope so!
Sunday, October 26, 2008
There's a very interesting article in the Washington Post about the profound effect Sarah Palin is having on "traditional" feminism. The article points out that: "As Election Day nears, it's clear that gender was not a disqualifying factor for either Clinton or Palin. Voters who turned against them did so for other reasons, just as they do with male candidates. Women from both parties also perceive with satisfaction a heightened emphasis on their issues in this year's race."
Most interesting (and encouraging) for some of us Catholic "new feminists", though, is this description of how her witness as a pro-life woman is affecting "traditional" feminists.
The unexpected recognition of a conservative as a role model for women has forced some traditional feminists to reconsider the movement's mission. "It's going to take us a while to find our bearings," said Sarah Stoesz, who runs the Planned Parenthood office that oversees Minnesota and the Dakotas. "As feminists, we've always thought that a core aspect of women's equality is about being in control of our reproductive lives. But Sarah Palin is throwing the calculus out the window and demonstrating a view that some people would call feminism: I can be governor, I can have five children, I can shoot and field-dress a moose, and I don't need access to abortion.
"There's a big debate inside the leadership of the women's movement about how much abortion should be a key political issue."
. . .
The next big issue for women, Bernard surmised, is to determine whether both sides of the ideological spectrum can find common ground. "Is there a big enough tent -- can we all find the common ground in the push for women's rights regardless of women's position on abortion?" she asks.
In recent years, vocal groups such as IWF and Feminists for Life have stepped forward to fight the perception that only liberal women can be in favor of equality and independence. By calling herself a feminist -- once considered a dirty word by the religious right -- Palin proclaimed that feminism is no longer synonymous with liberalism but something that could be shared and celebrated by all women.
. . .
"It's just nonsense to say you can't be a feminist and be against abortion," says former Clinton fundraiser and supporter Lynn Forester de Rothschild, who now backs McCain. "Democrats use [abortion] as a noose around your neck," says de Rothschild, who is in favor of abortion rights. "Sarah Palin," she says, "rocks all the stereotypes of feminism and can only enhance progress for women. "
Friday, October 17, 2008
Now here's some interesting research, from a newly-posted paper entitled: "Women in the Boardroom and their Impact on Governance and Performance." Apparently, more women on corporate boards means corporate performance is monitored more closely. They tend to show up more for board meetings and volunteer to serve on monitoring committees more often than men. The authors of the study conclude that, overall, this increased monitoring has a negative effect, because it is counterproductive in firms that are well run. The "negative" effect of all those women on the board, actually showing up for meetings and serving on monitoring committee, appears to be particularly pronounced in firms with strong shareholder rights, negatively effecting market valuation and operating performance.
Hmmmmm........ How many of us these days are wondering exactly how well-run the big financial firms have been, and how many of us are calling for MORE monitoring? And how many are wondering whether the shareholders' exclusive focus on profits is the best source of good governance?
Maybe John Paul II was on to something, back in August of 1995, when he said in an Angelus reflection: "the greater presence of businesswomen in executive positions in the economy is 'giving it a new human inspiration and removing it from the recurring temptation of dull efficiency marked only by the laws of profit.'"