In the March Foreign Policy Oliver Hart and Luigi Zingales suggest a free market approach to smarter regulation.
Just days after announcing his plan to clean up banks’ balance sheets of toxic assets, U.S. Treasury Secretary Timothy Geithner hit the airwaves, priming audiences for his next big project: a regulatory system to ensure that this financial crisis is a one-time event. “[The] core thing is to make sure that the institutions at the center of our financial system are subject to much more conservative, much tougher requirements on capital and leverage,” he told NBC’s David Gregory on Sunday’s Meet the Press. Geithner will be taking his show on the road this week as the G20 convenes in London, where regulation will be high on the agenda.
Should we welcome Geithner’s regulatory rethink? In principle, yes. If there is one lesson to be learned from the 2008 financial crisis, it is that large financial institutions (LFIs) such as Citigroup or AIG are too big to fail. Whether this doctrine is based on economics — the cost of LFI failure is too high — or politics — the pressure to save LFIs is too strong — the conclusion is the same: We need to reimagine how we regulate these institutions.
We’ll explain why a market-based system is the best way to achieve this, and how credit default swaps — yes, the same financial tools that helped get us into this mess — can play a role. But first, some basic principles.
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In our mechanism, when the CDS price rises above a critical value (indicating that the institution has reached an unacceptable threshold of weakness), the regulator would force the LFI to issue equity until the CDS price and risk of failure back down. If the LFI fails to do this within a predetermined period of time, the regulator will take over.
This regulatory takeover would not be dissimilar to a milder form of bankruptcy, and it achieves all the other goals of bankruptcy — discipline on management and shareholders — without imposing any of the systemic costs.
Credit-default swaps have been demonized as one of the main causes of the current crisis. It would be only fitting if they were part of the solution.
I would prefer a more direct “canary” mechanism — requiring financial institutions to offer a small (5% of capital) amount of subordinated debt. Changes in the price of that debt communicate very directly any market concerns about the adequacy of loss reserves.



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