The Fed's Apparently Nonexistent Interest

Last week, Katie proposed that we might have a blog category for "Beyond the Comfort Zone." I'll add another new category: "Things Bob Does Not Understand." It's sure to have lots of entries. Here is what I don't understand today.

As illlustrated by a Wall Street Journal article from last week, a number of media sources reported that credit card interest rates are rising. The conventional story is that credit card lenders are hiking rates to recoup income lost from new restrictions on fees and penalty rates. Even if credit card interest rates are rising, it would not necessarily mean the regulatory changes have backfired. The point was not to make credit card borrowing free, but just to make its costs more transparent. To the extent the regulatory changes have moved the costs into easily understood front-end interest rates instead of "gotcha" penalty fees at the back end, these changes have accomplished their purpose. But here is the thing, I don' t understand how the world has come to the conclusion that credit card interest rates are rising.

Fringe Lending and Consumer Welfare

Like Katie Porter, I found Professor Jim Hawkins' paper on fringe lending valuable for challenging some of the premises underlying calls for stricter regulation of fringe lending products like payday loans.  In my view, there are empirically testable criteria for regulation of fringe credit, which I hope to elaborate in a forthcoming paper.  Unfortunately, Professor Hawkins ultimately does not offer either a normative consumer welfare framework for credit regulation, or a truly empirical examination of the welfare impacts of fringe lending.  Instead, he relies on product descriptions that reflect industry marketing more than the experienced reality of working class borrowers who use them, and uses a very limited implicit definition of consumer harm to restrict the possible justifications for market intervention.

If You Have Complained About Financial Industry Regulation

. . . . today's Dilbert is for you:

Secrets about Elizabeth Warren Revealed

I have known Elizabeth Warren for ten years, and I know her pretty well. I've been to her home; she's been to mine. She sent me baby gifts; I got her a 60th birthday present. We exchange Christmas cards,  . . . you get the idea.

Now she's a candidate for this big-time appointment as the Director of the New Consumer Financial Protection Bureau. And somehow there are these things about her that must be deep-dark secrets  because it seems like people do not know Elizabeth Warren at all. (As Bob Lawless has written, I think the debate is becoming about a caricature of Prof. Warren, not Prof. Warren the real person.) So here it is . . . Secrets about Elizabeth Warren Revealed.

Bank of America Settlement -- A Sign of True Progress?

In my last post I noted the beginnings of some positive movement by consumer protection agencies that have been largely dormant and, in some cases like the United States Trustee program, actively anti-consumer. A few weeks ago, as Katie Porter noted in a recent post, Bank of America (BOA) reached a settlement with the Federal Trade Commission with respect to certain mortgage overcharges, including overcharges in bankruptcy, on mortgages formerly serviced by Countrywide Mortgage. The settlement requires reimbursement to consumers who were overcharged. BOA, in addition to agreeing not to lie, steal, or file documents without reviewing them, will also have to follow notice procedures similar to those that are already required or are likely to be required for all mortgage companies once new Bankruptcy Rule 3002.1 becomes effective in December, 2011. The United States Trustee (UST) Program assisted the FTC in its efforts.  This settlement is the first significant positive result of increased UST scrutiny of mortgage lenders, although the extent of the UST’s participation is not known.

The Beginning of a Return to Consumer Protection?

Many years ago, in the mid 1970's, when I began my career as a legal services lawyer practicing consumer law, it seemed that we were on a roll. Congress and state legislatures were passing a bevy of laws to protect consumers (including the Bankruptcy Reform Act of 1978.)  The FTC was passing regulations and taking action against consumer scams. Innovative lawyers, often in legal services programs, were bringing class actions against a wide variety of illegal and unfair practices. These cases were received sympathetically by courts that, from a common sense perspective, could see that those practices took advantage of consumer ignorance or confusion.  Little did we know that we were at the peak of the consumer protection movement and it would be almost all downhill from there.

$108 Million Settlement on Countrywide's Servicing Practices

Last week, the FTC announced a $108 million settlement with Countrywide based on allegations that Countrywide's loan servicing operations collected excessive fees. The complaint describes Countrywide's servicing practices for default fees as part of its strategy to keep on profiting from consumers, even in hard economic times. I've previously commented on Countrywide's description of this as a "countercyclical diversification strategy" that it trumpeted to investors, and what Senator Schumer thought of such a strategy. The complaint alleges that Countrywide used subsidiaries to mark-up fees--often by 50-100%--on default services such as property inspections. Instead of Countrywide loan servicing working directly with vendors for these default services, Countrywide loan servicing would contract with its subsidiary, who would then work with the vendor. And that extra step--from one Countrywide entity to another--dramatically boosted the fees that got charged to struggling homeowners. To me, the lesson of the FTC's enforcement action is that businesses can use subsidiaries but they can't use subsidiaries to upcharge consumers and obscure the real costs of services.

The settlement also addresses the problems with Countrywide's mortgage servicing in bankruptcy. The FTC alleged many of the same wrongs that I identified in a law review article on mortgage servicing in 2008, including that filing claims that it could not substantiate. The UST Program cooperated with the FTC on the enforcement activity, and the settlement also resolves the UST litigation against Countrywide.

If you are a consumer who filed a chapter 13 bankruptcy case with a mortgage serviced by Countrywide, you may be eligible for a cash award. The FTC website has more details.

Rigbi on Usury on Prosper

When Credit Slips started, we intended to feature new scholarly papers by the bloggers and others. I am going to attempt to revive that tradition by featuring a paper by Oren Rigbi, an assistant professor in the Department of Economics at Ben-Gurion University of the Negev. Rigbi’s paper, “The Effects of Usury Laws: Evidence from the Online Loan Market,” exploits a change in the lending rules that apply to Prosper.com to examine the effects of interest rate caps. Prosper.com is an online lending web site, as Katie Porter explained just after it launched. In April 2008, a change in the way Prosper is organized meant that the interest rate cap was raised to 36% where previously some borrowers had a lower cap (depending on the state where the borrower lived). Thus, Rigbi was able to explore the effects of raising an interest rate cap on the ability to borrow, the amount borrowed, the interest rate for the loan, and repayments.

There are certainly differences across borrowers, time, and states, but Rigbi uses careful empirical analysis to control for these differences. What’s left is a measurement just of the effect of the changing in the interest rate cap. Rigbi summarizes his findings as follows: “I find that higher interest rate caps increase the probability that a loan is funded, especially if the borrower is risky and previously been just ‘outside the money.’ I do not find that borrowers change the loan amounts they request or that their probability of default rises. The interest rate paid for all loans, however, rises slightly probably because online lending is imperfectly integrated with credit markets.” Rigbi concludes his paper by saying, “The main takeaway point from this inquiry is that interest rate restrictions do not seem to deliver the outcomes for which they were intended.” My description of the methodology and findings glosses over a great deal of detail. Rigbi was kind enough to indulge me in an e-mail exchange and even kinder to allow me to reproduce it here:

Is U.S. Bank Collecting Illegal Interest Rates?

When their customers have complained about an unexpected fee, credit card companies have pointed to the fine print in their credit card agreements. Now, a pro se litigant in California has turned the tables on U.S. Bank, saying it has failed to read the fine print in the North Dakota statute. As detailed in the Santa Rosa Press Democrat, a small-business owner and bootmaker, Michael Carnacchi, is opposing U.S. Bank's collection action against him on the grounds that U.S. Bank's credit card interest rates are illegal.

It all sounds crazy, but it gets crazier. A careful reading of the North Dakota statute and the National Bank Act suggests Carnacchi might be right. U.S. Bank is a national bank located in North Dakota, and the particular language of that state's laws might give it a big headache.

More Naked Credit Default Swaps--the Role of Dealers

These post titles should definitely increase the hits on our blog...

I want to add another point to the debate:  CDS are often done through dealers, and a naked position for a dealer is different from a naked position for an end-user.  A CDS dealer's swaps desk is unlikely to have any long-term stake in the underlying asset.  Generally, a swap desk tries to execute perfectly matched swaps so that it will never have any exposure itself to the underlying assets, only counterparty risk.  (And dicey counterparties have to post collateral).  It isn't always possible to match swaps instantaneously, however, so the dealer will often enter into one swap hoping to find a match soon.  Until the dealer finds a match, the dealer has exposure.  Moreover, a dealer might be able to get a better price (and hence a bigger cut for itself) if it doles pieces of the swap into the market, rather than trying to move the whole swap position at once.  There might not be a lot of market appetite for a $25B swap position except at a steep discount(this goes for CDS as well as other types of swaps), but smaller pieces might be digestible.  Dealers tend to try and have everything cleaned up by the end of the quarter, but in between, the short-term exposure could be sizable.   If naked CDS were banned without a dealer exception, covered (i.e., not naked) CDS would become quite difficult to arrange and execute. 

Complicating this picture is that sometimes a swap dealer decides that the swap is an inherently good position given the price and holds the action itself.  This is all by way of saying that CDS go through a dealer market, not a broker market.  There might be a case for moving CDS to a broker market, but unless there's sufficient liquidity for the product, that'd be difficult. 

To illustrate the role of dealers, consider the Abacus deal.  It is usually presented as Goldman Sachs simply arranging a swap between Paulson and the CDO.  That's the economic essence of the deal, but not how it worked technically. 

Amendment to Repeal Marquette

Senator Sheldon Whitehouse is sponsoring an amendment to the financial regulation bill that would undo most of the damage from the Marquette National Bank decision. In Marquette, the Supreme Court ruled the National Bank Act preempted state interest rate regulation. Thus, a national bank in South Dakota lending to a consumer in California gets to follow the relatively lax interest rate laws of South Dakota. No matter that the high-rate loan might cause financial hardship for families in California--that's not South Dakota's problem.

I've long thought that overruling Marquette would be a wise move. The decision laid the groundwork for the the consumer credit culture we have today and is arguably one of the most momentous (but often overlooked) Supreme Court decisions of the last fifty years. Also, as an interpretation of a technical provision a 110-year old statute, Marquette might also win the prize for the Supreme Court decision with the most unintended consequences.

If you think interest-rate regulation is a bad idea, nothing in the Whitehouse amendment should bother you. It merely shifts the power to make decisions about interest-rate caps to the states and away from Washington bank regulators. California can enact laws appropriate for the conditions there, just like South Dakota can enact laws appropriate for its citizens. The Whitehouse amendment does not take any position on whether the appropriate law is a high cap, a low cap, or no cap at all. California or South Dakota or Delaware or any other state just would no longer be able to export their interest-rate laws to other states. It would allow the states to be laboratories of democracy, as the saying goes, and experiment with interest rate regulation. Also, it should be noted that the amendment would not apply to interest rates on home mortgages.

The predictable response from the banking industry will be that they cannot possibly operate and be subject to 50 different state laws. In the information technology age, however, compliance with different state interest rate statutes should be a trivial matter of computer programming. Also, the banking industry (and many other industries) capably navigate a whole thicket of laws on core state matters such as employment, taxation, and property. The Whitehouse Amendment deserves more attention than it is getting.

UPDATE: The text of the amendment is here, and an explanation of the amendment from Senator Whitehouse's office is here.

Wanted: People with Good Credit for Low-Paying Jobs

Despite the increased proportion of Americans who are behind on their mortgages or have lost their houses to foreclosure, the practice of doing credit checks on prospective employees continues to climb sharply in popularity. The Society of Human Resources Management’s recent survey found that 60 percent of employers run credit checks on at least some job applicants; back in that “healthy” economy of 2006, the comparable figure was 42 percent. The growth in credit checks by employers is some evidence to counter arguments that the stigma of financial distress, bankruptcy, or foreclosure is falling as more and more Americans struggle to meet their debt obligations. Employers seem to be taking the opposite tact, with the weak labor market permitting them to be increasingly selective about whom to hire. Credit checks are a fast and cheap way to screen out candidates. And one in 8 employers checks the credit of every applicant for every job--meaning that people like janitors and retail workers can suffer employment discrimination on the basis of their credit.

Warren op-ed: Banking on Hypocrisy

Check out Credit Slips co-blogger Elizabeth Warren's op-ed on Politico, entitled Banking on Hypocrisy. She quotes extensively from a letter that the American Bankers Association sent to banking regulators in 2006 in opposition to the proposed intra-agency guidance that would have required better underwriting of nontraditional and subprime loans. While it's entertaining--and painful--to read just how wrong the ABA was in its assessment of mortgage risk, Professor Warren's point is to compare the ABA's position on consumer protection regulation in 2006 with its current stance. In the memo, the ABA decried the "marriage of inconvenience between supervision and consumer protection," saying that it blurred "long-established jurisdictional lines." The ABA recommended that the safety and soundness provisions be separated from consumer protection provisions. Yet, now the ABA has opposed a stand-alone Consumer Financial Protection Agency, saying that safety and soundness and consumer protection need to be performed by the same agency. The ABA reminds me of Mayor Quimby from the Simpsons: "Very well, if that is the way the winds are blowing, let no one say I don't also blow."  (Thanks to Bob Lawless for offering up this quote the other day in another context; it's so apt these days!)

Financial Consumer Protection--The Last Thing We Need Is Federal Banking Regulator Oversight

Yesterday, I was talking with former Credit Slips guest blogger Pat McCoy about perhaps reprising that role for us. McCoy is a law professor at the University of Connecticut and, along with her co-author Kathleen Engel, was writing about Wall Street's role in financing predatory home loans before anyone else wanted to talk about it. Unfortunately, some upcoming professional travel is going to prevent Pat from joining us until later in the spring.

We started talking about the Dodd financial regulation bill announced yesterday. While we were talking, Pat was explaining to me that the proposed Bureau of Consumer Financial Protection would not be as independent as advertised. It was a point that I had not fully appreciated--it is a 1,300 page bill, after all. Even as she prepared to travel, Pat kindly agreed to write up a few a paragraphs on her thoughts about the issue so I could post them here:

Of Cyborgs and Repo Men

The New York Times may have thought it had the scoop on the repo man of the future, but the new movie Repo Men has it beat by several hundred years. Jude Law and Forrest Whitaker star as space-age repossession agents who track down debtors and retake their collateral. The twist is that the collateral in question is transplanted body parts. So if, for example, you fall behind on the payments for your new kidney, Law and Whitaker will hunt you down and take it off your hands. Early in the preview – the movie opens later this week – we see the two scalpel-toting contract enforcers taking the Article 9 “breach of the peace” standard to whole new levels and saying over beers that a job is just a job. But, not surprisingly, Law has change of heart, one that appears to be spurred by a literal change of heart, and suddenly . . . the repo man becomes the debtor. (That’s credit-speak for “the hunter becomes the hunted.”)

Judging from the preview, Repo Men looks like your typical sci-fi dystopia flick where good-looking people fight a seemingly losing battle against a behemoth government or corporation that controls every aspect of human life. What’s interesting is that the credit industry has a starring role as the Big Brother. The movie takes two of the worst miseries of the current credit system – overwhelming medical debt and rampant foreclosure – and twists them into one debt nightmare. I never thought the line, "We could come up with a plan that fits your [budget]" could sound so menacing. Does a movie like this mean that there’s enough anger at lenders to, say, get us a Consumer Financial Protection Agency with teeth? I don’t know. But it does suggest that this is our big chance. We may never get an action-movie moment again.

Thank you to UT student Jennifer Carter for the tip!

Fringe Banking, Financial Distress, and the Consumer Financial Protection Agency

I'd like to say thanks again for the chance to share some thoughts at Credit Slips.  I've really enjoyed the comments.  I wanted to end with a post about a current issue before Congress. 

One reason it is important to know what financial distress means and to understand the relationship between fringe banking and financial distress is that policy makers consistently use financial distress to justify intervention into fringe markets.  Because financial distress creates externalities, it is a powerful tool to justify regulation.

A speech President Obama made late last year arguing for the Consumer Financial Protection Agency (still working its way through Congress) is a good example of how this works.  To make the case for the CFPA regulating payday lending, the President gave the example of a women who'd taken out a payday loan.  He linked the product to wide-spread financial distress: "Abuses like these don't just jeopardize the financial well-being of individual Americans—they can threaten the stability of the entire economy."  As I have argued, I think this claim is really hard to make out.  Financial distress might justify the CFPA regulating credit cards or mortgages, but I don't think it justifies regulating on the fringe.

Relying on a link between fringe banking and financial distress distracts from the other persuasive arguments for creating the CFPA.  And, in other contexts, it leads to regulation aimed at solving the wrong problems.  People using fringe banking need protection, but we need to rethink regulation aimed at preventing financial distress because it solves a problem that I don't think exists. 

 

Monetary Policy and the Housing Bubble

A popular explanation of the financial crisis lays the blame at the feet of the Federal Reserve for lax monetary policy.  In this story, the Fed dropped interest rates starting in 2001 and kept rates too low for too long.  Low rates induced an orgy of mortgage borrowing for leveraged home speculation. 

It's a nice story.  Only problem is it doesn't really hold up under inspection.  Low rates in 2001-2003 did fuel an amazing mortgage refinancing boom, but not a purchase boom, and the boom was mainly in conventional fixed-rate mortgages, not the exotic products later years.  Moreover, despite the refinancing boom, no housing bubble was emerging in this period. 

The Fed started to raise rates in mid 2004 and continued to do so until mid-2006.  It was during this period that the bubble emerged, when rates were going up.  (To be fair, some might argue for an earlier date to the bubble, even as far back as the late 1990s.)  If we date the bubble from 2004, it's not consistent with a rate-driven bubble story, although rates were still extremely low in absolute terms during this period. 

The monetary policy story, however, really falls apart when one compares the US and Canada, as the graph below does.  Canadian interest rates, and perhaps more importantly, Canadian mortgage rates, track US rates pretty closely.  Yet the US had a housing bubble, and Canada did not.   This means we have to look somewhere other than monetary policy to explain the housing bubble.  The answer, I believe, lies in method and regulation of housing finance. 

Usury and Securitization

Most institutional lenders in the United States are not subject to usury laws.  National banks can evade they by basing themselves in states without usury laws and exporting the laxer regulation to other jurisdictions.  State institutions often find themselves exempt because of state banking parity laws.  And usury laws are preempted for many mortgages by federal law (although originally the FHA eligibility rate cap--removed in 1983--served as a de facto federal usury law for many mortgages). 

There's plenty to say (at another date) about whether usury laws are good policy.  I want to raise a related legal question for discussion on the Slips:  are debts held in securitized pools subject to usury laws? 

Proposals for Haircuts at the FDIC

FDIC-sponsored haircuts have become a hot item in the blogosphere. My wife used to work for the FDIC, and I smile every time I hear the term as I think about the building on F Street with a big barber pole in front of it. Here, the term is not being used in its hirsuted sense but as part of the colorful vernacular that surrounds insolvency work. A "haircut" describes a situation where a creditor is paid less than that to which they are entitled.

The FDIC proposal comes from Representatives Brad Miller and Dennis Moore and would limit the recovery of secured creditors to 80% of the value of their collateral in FDIC takeovers of failed banks. (I can't seem to locate the original text of the proposal on the Internet, but it has been widely reported.) Academic types will remember a similar proposal from Professor Elizabeth Warren back in the 1990s that would have limited recovery to 80% of the collateral's value. While Warren's proposal would have applied to many types of secured lending (at that covered by Article 9 of the Uniform Commercial Code, the current proposal is limited to failed financial institutions taken over by the FDIC.

The usual criticism has arisen in the usual places, namely that the latest proposal will discourage capital formation in banks. In turn, it is said that banks will lend less. Growth will be deterred. And we'll see even more gruesome scenarios involving the cross-breeding of dogs and cats. All of that might be true--well the dogs-and-cats part is less likely--but these criticisms miss the point. The question is not whether we like capital formation and economic growth but whether the costs are worth the benefits. The costs here come from the moral hazard that is created by asset partitioning.

The Australian Interchange Experience

The New York Times ran a story on the impact of interchange regulation in Australia.  Calling it interchange regulation is somewhat of a misnomer.  The Reserve Bank of Australia in fact acted to bust up anticompetitive private regulation of interchange.  Payments are an area with intense regulation, but that regulation is often private self-regulation.  Thus, what occurred is better thought of as interchange deregulation. 

Guess what?  Interchange regulation is working exactly as one would have predicted.  Consumers who want rewards have to pay for them directly now.  They can't free-ride off of other consumers (using cash, debit, or non-rewards credit cards) to finance their frequent flier miles, etc.  Not surprisingly, annual fees have gone up for rewards cards.  This has also pushed consumers toward greater debit card usage, which is often a healthy thing.  (To be fair, there is a similar move to debit in the US without interchange deregulation, so the causation in Australia is questionable.)

A predictable problem has arisen in Australia, however.  Some merchants are now imposing credit card surcharges that are greater than the cost of accepting credit card transactions.  This isn't good for consumers.  But it isn't a problem with interchange regulation.  This is just a symptom of less than perfectly competitive markets in other areas of the economy.  Excessive surcharging is most likely to appear in the least competitive areas of the economy. 

Evans and Wright on the CFPA: Round 2

A couple of weeks ago I wrote a short critique of one piece of a long study written by David Evans and Joshua Wright about the Consumer Financial Protection Agency and funded by the American Bankers Association.  The related blog post is here.  Evans and Wright have responded.  

There's a lot that I thought was objectionable or questionable in Evans and Wrights study, but most of it was well within the bounds of reasonable argument.  I have no problem intellectually with arguments that any particular regulation could impose costs that outweigh its benefits.  Instead, I was was moved to write because Evans and Wright were making precise numerical claims about the cost impact of the CFPA, and that these claims were based on either (1) a highly questionable comparison to dissimilar regulation or (2) pure conjecture.  

In their reply, Evans and Wright spend a good deal of time arguing about things that are really beside the point to my critique.  For example, Evans and Wright emphasize that I have not proved the affirmative case for the CFPA's positive impact (a passing point I made to show that the economic impact of regulation is susceptible to multiple predictions) and that I have "disputed virtually none of [their] findings that the CFPA Act would impose high costs on lenders and ultimately result in denying borrowers choice."  Let's be clear.  My critique was about three spurious numbers.  I didn't set out to prove a positive case in the critique and don't need to do so to make my central point.  And to imply a concession from silence about other issues is ridiculous in this context.  This sort of logical move is, however, consistent with the problems with Evans and Wright's statistical claims.  

But let's get to the heart of the matter.  My issue with Evans and Wright is about the numbers, not about their priors regarding regulation.  There are three numerical claims in Evans and Wright's piece with which I took issue. First, Evans and Wright claim that a CFPA would result in a 160 basis point increase in the cost of credit and a derivative 2.1% decrease in credit demand.  These assertions were based on a comparison with a study of non-analogous regulations that have been found to have an 80 basis point impact.  Evans and Wright argue that even though the regulations are different, they are less invasive, so therefore at least twice the impact would be the lower bound. Why twice?  Just because.  Evans and Wright still have no justifiable basis for doubling, as opposed to tripling the number, etc.  It is not as if 160 basis points is within some statistical confidence interval or the like.  While a 160 basis point number appears to have the imprimatur of social science, it is just conjecture, or, to be charitable, a very rough guesstimate.  

In a cost-benefit analysis, however, precision matters.  A CFPA might be worthwhile at 120 basis points, but not at 160 basis points, for example.  The problem with Evans and Wright's methodology is that they can no better defend a 160 basis point number than a 120 basis point number or a 700 basis point number.  Evans and Wright emphasize that there were merely setting a lower bound, but that hardly makes their number more defensible.  Evans and Wright simply do not and cannot know the impact, including what the lower bound would be.  Of course, precision is beside the point if the goal is to produce a scare statistic, rather than a rigorous cost-benefit analysis.  

The third spurious statistic in Evans and Wright is a claim that a CFPA would result in 4.3% slower job creation.  They achieved this number by taking a statistic about the role of small startups in job creation and then "supposing" that a CFPA would inhibit five percent of this.  I noted there were problems with their job creation statistic (namely that it failed to account for the spectacular failure rate of small startups after their first year, when they result in net job loss, not creation).  But that was a side point.  The critical problem was that they "supposed" a impact number without any basis whatsoever for their supposition. 

Evans and Wright take issue with my statement that "The key point here, however, is the impact of the legislation is speculative and certainly not susceptible to precise statistical predictions.”   They state, "That is a nihilistic approach."  Actually, it is an intellectually honest approach.  A debate that is poisoned by spurious statistical claims, rather than their debunking, are what will engender nihilism.  It'd be great to have an empirically informed policy debate.  But that's not license to make up numbers.  Policy debates have to function within our epistemological limitations.  There's a constructive debate to be had about the CFPA.  But constructive doesn't mean making things up.  

Bogus Statistics: The Banking Industry's Go-To Lobbying Tool

Fake statistics have been a central feature of the banking industry's lobbying strategy on every major consumer credit issue since the 2005 bankruptcy amendments. 

In 2005, there was the phantom $400 bankruptcy tax used to push through the BAPCPA.  Then there was the Mortgage Bankers Association's 200 basis point interest rate increase claim about cramdown.  For credit cards, there was no fake statistic, but a pseudo-academic study funded by the American Bankers Association.  (In retrospect, lack of a scare number was a major strategic mistake for the industry.) 

Now we have the latest installment in the parade of phony numbers:  an American Bankers Association-funded study about the likely impact of the Consumer Financial Protection Agency (CFPA) on consumer credit cost and availability and economic growth.  The study is by David Evans of LECG and Joshua Wright of George Mason Law School (Wright may be familiar to some Credit Slips readers from his blog comments in the past). 

There's a lot of tendentious claims in Evans and Wright's study, but the heart of it are some very precise claims as to the impact of the CFPA on the cost of consumer credit (160 basis points), the demand for consumer credit (2.1% decrease), and the net job creation (4.3% slower).

How, you might ask, did anyone possibly arrive at such precise predictions based on legislation that does not create any substantive regulation of the credit industry, but would merely transfer largely existing powers to a new agency? 

The short answer:  just make up the numbers.  I kid you not.  Evans and Wright selectively chose a study on the impact of a different regulation (interstate banking restrictions) on credit cost.  They briefly argue it is analogous to the CFPA Act, which they claim will have double the impact.  (Why double?  Why not?)   Then they take that number and multiply it by an elasticity metric for the demand impact.  And for the coup-de-grace, they take a misleading number on net job creation and conjecture with no basis that it would be reduced by 5%.  These numbers are presented as "plausible, yet conservative" assumptions. 

There's a lot of room for good faith disagreement about methodology, but Evans and Wright's numbers don't come close to passing the straight-faced test.  (Even the Mortgage Bankers Association had some facially plausible basis for their cramdown claim.)  I am still shocked that two serious scholars would attach their names to this study. My short critique of their study is here. 

Unresolved Access Issues

Yesterday’s post on means-measuring versus means-testing offered a positive perspective on the Canadian bankruptcy reforms.  The focus was on debtors who are currently able to access the bankruptcy system and how this will change with the enactment of the reforms.  Unlike the American system, the Canadian surplus payment requirements do not impose additional front-end administrative and financial burdens that in themselves will prevent the poorest of potential bankrupts from accessing the bankruptcy system. However, a number of obstacles hinder access to the bankruptcy process for the poorest debtors.  In particular, such debtors will have difficulty paying the approximately $1800 in costs associated with the administration of a bankruptcy.  The reforms go some way to address this concern by providing a mechanism for the bankrupt to reach an agreement with the trustee to continue paying for bankruptcy services after the bankruptcy period. 

Professor Saul Schwartz of Carleton University and I have been working on issues around debt, low-income households and insolvency remedies for some time now.  Jason Kilborn blogged about our 2007 article at: http://www.creditslips.org/creditslips/2007/04/bankruptcy_for_.html.  In that article, we pointed out that, for two reasons, the conventional wisdom is that the poor are not likely to have needed the insolvency system. First, creditors are reluctant to extend credit to the poor because the risks of non-payment are high. Not having been able to borrow, the poor are not over-indebted and are therefore not in need of bankruptcy protection. Second, some poor debtors - lone parents on social assistance for example - are judgment-proof meaning that judgments for money recoveries obtained by their creditors are of no effect because these debtors do not have sufficient non-exempt property or income to satisfy the judgment.

HAMP--Is It Really All About the Money?

Are mortgage servicers really refusing to modify mortgage loans solely because of all of the "ancillary fees" they can generate from a completed foreclosure? Is the problem really all about the money or is there something more to it?

The New York Times reported about ten days ago that the HAMP mortgage servicers were reluctant to engage consumers in modifications because the companies collect such lucrative fees on delinquent mortgage loans. There is certainly a substantial body of evidence to support the "lucrative fees" disincentive theories. For example, the Federal Reserve Bank of Boston recently shed some light on this problem with a new study that concluded that only 3% of the seriously delinquent mortgages had been modified due to the "the simple fact that the lenders expect to recover more from a foreclosure that from a modified loan." And, the number of reported bankruptcy cases where mortgage servicers have been sanctioned for imposing unlawful, illegal and unreasonable "collateral and ancillary fees" is substantial and perhaps monumental in their numbers.

Bring Back Bob the Banker

If you’re over 40 years old and didn’t grow up in the big city, you knew Bob.

Bob was a local banker. He lived in the same town where his bank was. He was a loan officer, probably a Vice President, and worked for the bank for years. Bob married his high school sweetheart, raised four or five kids in the town you lived in, belonged to the local optimist club, and attended a local church every Sunday. Bob showed up at most of the civic events in town. You saw him at many of the weddings, christenings, and funerals in town too. Bob knew everybody who was anybody in your town. He also knew a lot of nobody’s as well, but that didn’t matter to him – anybody or nobody, you were from his town and he was the banker.

Bob viewed himself as the guardian of the bank’s money, and the reputation of the bank in the local community was very important to him. When people needed money, they would come to Bob to apply for a loan. There was paperwork to fill out, but it usually wasn’t very extensive. Bob looked at the paperwork to be sure, but Bob knew you, he knew your parents, he knew where you worked, and he knew how much money you made.  Most importantly, Bob had a pretty good idea what sound financial practices were and he cared about your financial well-being because it was tied to his bank’s reputation.

In Favor of the Consumer Financial Protection Agency (CFPA)

Adam's earlier post started the ball rolling on the CFPA discussion, and I wanted to weigh in (favorably) having now waded through the 153 pages of proposed legislation.  I take the case to be made for sheer regulatory consolidation as surely correct: the crazy quilt of overlapping agencies would make even Sir Humphrey cringe.  But the case in favor rests on much more than that, and of shrewd appeal to both typical bailywicks of the left and right.

Who Loses in Cuomo v. Clearing House?

Adam Levitin already posted on this week's decision in Cuomo v. Clearing House Association where the U.S. Supreme Court struck down a regulation from the Office of the Comptroller of the Currency's (OCC). The regulation preempted state enforcement of consumer protection laws against national banks and grew out of subpoenas issued by the New York attorney general. At first blush, the opinion seems to be a big victory for consumers, and it certainly is a victory. As alluded in the comments to Levitin's post, the opinion might not be as big of a victory as it seems.

Repealing Marquette

Senator Sheldon Whitehouse has introduced, with Senator Dick Durbin, the Empowering States' Right to Protect Consumers Act of 2009 (S. 255). The statute would repeal the thirty-one year old Marquette decision, which was the United States Supreme Court ruling that held federal law preempted state law regulating interest rates. A later decision in 1996 (Smiley v. Citibank) expanded the scope of federal preemption, holding states also lacked the power to regulate the fees charged on credit cards, and the bill would repeal Smiley as well.

Marquette effectively deregulated most consumer interest rates and led to the expansion of consumer borrowing for the past thirty years. After the Smiley decision, bank fees started to climb. Much of the "gotcha" marketing mentality from the credit card industry can be attributed to the freedom Smiley gave banks to exploit credit card fees as a revenue stream.

Some persons think interest rate and fee caps are bad idea. Fair enough. The Whitehouse bill, however, is not an interest rate cap. It merely returns the power to the states to regulate consumer lending to their citizens and harnesses the states as "laboratories of democracy" (as the saying goes). Let the states experiment with interest rate and fee caps, and we will find the right balance between exploitative market practices and overly restrictive government regulation.

Gamble Away the Risk

Bankruptcy is a back-stop for risk management errors. Last week I attended a conference sponsored by the Center for Health, Economic, and Family Security at Berkeley Law on the appropriate level of risk that government, private industry, and individuals should bear for a variety of risks--job loss, illness, changes in family needs, and others. Repeat CreditSlips guestblogger Christian Weller and Amy Helburn presented a paper on family debt and assets that highlighted the $15 trillion in lost household wealth in the 18th month period 6/07 to 12/08. The paper's key point is that our savings rate is too low. That is a pretty easy case to build, and as Weller and Helburn skillfully acknowledge, the trick is figuring how to stimulate savings. Anne Stuhldreher from the New America Foundation had lots of interesting ideas. The most fun one capitalized on the penchant for gambling. She reported that the average American spends $500 in scratch/instant lottery tickets per year. A pilot program in Michigan, Save to Win, gives consumers a chance at a $100,000 grand prize and monthly cash prizes. Each $25 deposit into the savings account is an entry to this lottery for savers. The highest take-up, as well as those depositing the highest percentage of their income, are residents of central Detroit. The program is proving particularly adept at motivating savings even among households with low-incomes or substantial risk of financial hardship. While only one lucky consumer will get rich with the grand prize, all these families reducing their risk of losing in the game of chance that is American household economic security by bolstering their savings.

Finally, Some White House Interest in Credit Card Abuses

The Obama Administration today turned its attention toward abusive credit card practices. After years of presidencies that were at best indifferent or at worst supportive of the credit card industry abuses, to finally have the White House give some attention to these issues is an incredibly welcome development. Specifically, the Obama Administration has indicated it will support H.R. 627, the Credit Cardholders' Bill of Rights Act of 2009. Representatives Carolyn Maloney and Barney Frank have played a leadership role in this legislation, as they have for years with consumer credit issues, and they were able to get the bill through the House Financial Services Committee. The full House is almost certain to pass the bill, but it faces an uncertain future in the Senate.

The Credit Cardholders' Bill of Rights would end retroactive interest rate hikes and hikes without notice, put an end to double cycle billing, and limit fees and penalties. It is legislation that needs to be adopted. Not surprisingly, the bill is facing tough opposition from the financial services industry which is trotting out the usual arguments about credit restrictions and price hikes. These canards, although I know some will disagree with me about that characterization, are used every time consumer lenders face legislation that might make them play fairly. I'll let that debate play out in the comments, as it undoubtedly will.

There is one particular industry argument, however, that strikes me as particularly disingenuous. The New York Times reports that the industry is arguing the federal legislation is unnecessary because it largely duplicates recently adopted Federal Reserve rules. It is true that the legislation does have some overlap with the rules, but that is still no reason for the legislation not to go forward. First, the legislation is not identical with the Fed rules, meaning the legislation would fix some problems the Fed rules will not. Second, to point out the overlap is to beg the question of which action is the redundancy. Why aren't the Fed rules now redundant and beside the point? Third, the Fed rules won't take effect until July 1, 2010, and the legislation would take effect three months after adoption (generally speaking). Fourth and perhaps most importantly, I suspect the real reason the financial industry wants to keep the lawmaking at the Federal Reserve level is that the industry has more influence there. Once these new rules become enshrined in legislation, it will be much more difficult for the financial industry to undo them, which is as it should be.

Consumer Overindebtedness Around the World

My plan for the evening is to go in search of a giant sculpted head of Karl Marx. Fortunately, I'm in Chemnitz, Germany, where such a monument is a feature of the town square, a holdover from the days when the city was known as Karl-Marx-Stadt. Dr. Wolfram Backart has organized a wonderful conference at the Technische Universtät Chemnitz. The conference is entitled "Overindebtedness: Everyday Risk in Modern Societies? Theoretical Aspects and Empirical Findings in International Perspective" and has brought together scholars from Germany, China, Portugal, Japan, Sweden, South Africa, Finland, Canada, the United States, the United Kingdom, and Austria. Two themes have been emerging

How to Start to Get Trillions in Lost Wealth Back

The fact that wealth is rapidly declining deserves public policy attention. Wealth serves critical functions in the U.S. economy that relies heavily on individual initiative. It is primarily an insurance against a range of economic risks. The more such insurance exists for the typical family, the less a family has to worry about their basic necessities and the more they can focus on longer-term economic growth. A family that has the basics covered can take more chances by sending their kids to college and letting them choose a degree that suits their abilities. Also, family members can more easily switch jobs to match their particular skills. And, a family with enough wealth is in a better position to let their creative side take hold and start a business. The entire economy wins from letting people gain more skills and apply those skills most effectively in their job or by starting a business.

Recommending what the government should and should not do about rebuilding family wealth has become as ubiquitous as real estate ads in the mid-2000s and dot-com IPO discussions in the late 1990s. Here are just a few principles that will likely guide the reform debate.

Rx Contract Abrogation (Use Only As Directed)

Former Credit Slips guest blogger Anna Gelpern has a nice post on AIG and contract abrogation on Nouriel Roubini's RGE Monitor.  Anna argues that there are times when abrogating contracts makes sense, but that AIG just isn't one of them.  Contract abrogation is a powerful tool that should be used sparingly and only to protect macroeconomic welfare, not to express political outrage over the behavior of a single company.  

A Vignette from Champaign

Driving down one of our main thoroughfares yesterday, I drove past one of our local banks that was advertising its CD rates on the electronic sign out front. OK, nothing usual there. What was unusual was the line that appeared at the bottom of the sign "No TARP Funds." I was going to take a picture with my cell phone, but I decided that the attempt to do so while driving at 35 MPH might become the basis for one of my colleague's final exams in Torts or, worse yet, Criminal Law.

We've heard that some banks are wanting to cut ties to the TARP program because of the strings that came with it (NYT article). Out here in the heartland, the lack of a connection to TARP also seems to be perceived as a way to attract customers. This morning, I did notice that the CD rates and the accompanying TARP reference no longer was part of the sign's rotating advertisements.

The Repo Man Cometh.

An AP article by Jay Reeves highlights yet another disturbing consequence of our credit-based recession -- a rise in repo violence. The article details the killing of Jimmy Tanks, a 67-year-old retired railroad worker, who used a rifle to confront a repo crew at 3 in the morning and ended up dead.  The repo man has been arrested for murder. The rise in repo violence probably has a lot to do with the rise in repossessions. Car repos increased by 12 percent in 2008 and are expected to increase another 5 percent in 2009.

But the Uniform Commercial Code has a lot to do with this as well. Under Article 9, a repo is legal as long as the creditor's representatives don't "breach the peace," a test which has led to a body of caselaw that, paradoxically, almost guarantees violence. Basically, if the repo crew can get the automobile away from the debtor without violence occurring (no matter who starts it), the creditor is safe. But if the debtor manages to physically prevent the repo, even by extreme measures such as threats or chaining himself to his car, the creditor's representatives have to leave. This gives repo crews incentive to proceed by stealth, which it turn makes it more likely that debtors will confuse them with car thieves, and it encourages debtors to take extreme measures to defend their cars.

Another disturbing facet of this story is that the debtor had already filed for bankruptcy. The article doesn't mention whether the creditor had managed to get the automatic stay lifted, but if not, then the repo guys had no business whatsoever being there in the first place.

I want to thank my students James Hughes and Beckie Brice for the tip.

Household Income and Debt Trends Since 1980: Quick Picks

The folks who write Credit Slips are among those who have long wondered what the “exit strategy” was for an economy that was predictably on a wobbly course, with about 70% of GDP driven by household spending when many of those households were on kind of shaky ground.  That’s obviously not a sustainable long term strategy for economic growth when, on one hand, the income side of the ledger for a large share of those households was sputtering or stalling, while demands on the expense side from big ticket, basic items like health care and health care financing, education, and housing were growing.  The American household debt burden looks like a more complex problem if you think about the cumulative impact of all of these trends, rather than just thinking “flat screen TV” and stopping there.

In looking at data about these trends, I’ve been struck by the comparisons between the first post-WWII era (roughly the 30-35 years ending in the late 70s – early 80s), and the second one covering the last 30-some years.  Since the current crisis seems likely to serve as the end point to the late 20th century economic era, it’s interesting take a Before and After look at the household account trends.

Income growth:  Through this last period, the income gains have skewed increasingly not just to the top, but to the very tippy-top.  From 1946 – 1976, the average income growth for the “bottom” 90% of households was 92%, compared to 25% for the top 1%.  But from 1976 to 2006, the bottom 90% saw only 10% growth, while for the top 1% it was (wait for it --)  239%. (Sources for this and related figures are cited in the appendix to CRL’s comments to the Fed's then-proposed rules defining unfair and deceptive practices for credit cards.)   For a really cool visual of this uncool trend, take a look at the graphic in Clive Crook’s 2006 Atlantic article called "The Height of Inequality." And while you’re there, the story’s pretty interesting, too.

Savings:  A chart on the "By the Numbers" page on Inequality.org shows that the savings rate roughly doubled from 5% in 1949 to over 11% in 1982.  Since 1982, it looks like a downhill ski slope, and the rate was in negative territory by 2006.

Debt:  The debt-to-disposable income ratio of American households more than doubled from 60% in 1980 to 133% in 2007.  A recent article in the Economist says that household and consumer debt went up from 100% of GDP in 1980 to 173% now.

Sorry I haven't yet collected nice links to specifics on those expense-side demands, except for a recent Washington Post article noting that “college tuition and fees have jumped nearly 440%" since the early 80s, but you get the picture.

Lots of factors went into shaping this picture, not the least of which is just the economic world evolving.  But it wasn’t all out of our hands: we made some public policy decisions that helped. (And yes, personal decisions, including collective decisions that made up private sector policy decisions as well.  Personal responsibility is appropriate for both home and work.)  Now will be a good time to find our way to some better trend lines than these. Yes we can.  You betcha.  (In the spirit of bi-partisanship.)

The Other Underwater Loans: Negative Equity in Auto Finance

On Tuesday Fed Chairman Bernanke announced another installment in the effort to alleviate the  credit crunch in testimony before the House Financial Services Committee. One new tool in the kit is a joint Treasury – Fed facility to lend against “AAA-rated asset-backed securities collateralized by recently originated student loans, auto loans, credit card loans, and loans guaranteed by the Small Business Administration.” 

This got me to wondering what the recent (pre-crunch) state of affairs was with respect to the practice I used to call in consumer education programs “Drive One, Pay for Two” – burying the cost of refinancing the left-over debt on the trade-in vehicle in the new (or new-to-you used) car loan docs. Here’s how that  works:  The value of the trade-in is $8000; balance on the loan for that trade-in is $10,000. That leaves a $2000 deficit that either a) the dealer eats (unlikely), or b) you have to cover with an extra cash down payment as well as the trade, or c) gets rolled into the new car loan. The last option means that you are  essentially refinancing the remaining debt on the car you just sold back to the dealer, along with the price of the new car and whatever add-ons get added on back in the F&I office.

A lot of prospective buyers might decide to wait on that new purchase if they understood that  their new car loan would include left-over balance on the car they don’t own anymore. So a lot of dealers used to (still??) fudge the numbers on the loan papers so the old loan pay-off disappeared. (Don’t even ask about the Truth in Lending rules and issues.) 

Calling All Article 9 Supernerds--Negative Equity and State Law

What’s a blog for?  For law professors, a key attraction is to float a question you don’t have time to write a law review article about.

As a matter of state (not bankruptcy) law, should a loan be considered all purchase money if the lender makes a consolidation loan for purchase of collateral and also for paying off an old obligation, all secured by the collateral being purchased?  In particular, what are the policy implications for Article 9 purposes of defining purchase money obligation that broadly?

In bankruptcy, the definition of “purchase money security interest” determines the scope of the “hanging paragraph” in chapter 13--specifically, if “negative equity” on an old loan is rolled into a new purchase money loan, whether the whole loan should be treated as a purchase money obligation so that it can’t be crammed down (assuming that is the treatment under the hanging paragraph).

Under state law, the question of the meaning of “purchase money obligation” is not confined to car loans or even consumer loans.  The definition sets the scope of special purchase money provisions in Article 9 that extend to commercial finance for purchase of equipment and inventory.  Should the leap-ahead priority for purchase money obligations apply to rolled in negative equity?   Could this have perverse effects?  In the case of consumer loans for items outside certificate of title laws’ reach (i.e., collateral other than cars and boats), should automatic perfection extend to “negative equity” on some other old loan the balance of which is rolled into a loan for purchase of a washing machine or a diamond ring?

Here Is Your Interest Rate, Except When It Isn't

Credit card companies often make you promises with fine print that nullifies the promise. The Simpsons episodes (maybe the best . . . . show . . . . ever) often will include an advertisement promising some great product with a voiceover that says something like "There is no promise the actual product will be as advertised. Too bad that only one of those is a gag.

A Credit Slips reader e-mailed with a story of how Chase had just decided to change his interest rate from a 3.99% APR to his choice of a 7.99% APR or a $10 monthly service charge and 5% of the minimum balance. This person had a great credit score, no missed payments or job loss, and the loan balance was modest (only about $1,700). Still, Chase had decided it was going to change the deal.

The 3.99% APR is a great rate, of course, and had been a "teaser" rate to get this person's business. To induce him to apply for the card, our reader had been promised a 3.99% APR on all balance transfers "until balance is paid in full." Our reader did the financially responsible thing and transferred his existing balance to this lower-rate card. He dutifully made sure he did not incur any new purchases on the card that would trigger a higher rate. Chase was apparently not making enough money on the deal and decided it was time to change the terms.

A Class on Bailouts

In early 2008, I had to figure out what courses I would teach in the next academic year, and it was decided that I would offer a seminar of some sort in the 2009 spring semester. "Just call it a seminar on consumer credit as a placeholder in the course listing," I said. It seemed likely that such a seminar would be timely. Who knew? By the fall, of course, we were in a full-blown financial crisis, and the seminar became the Bailouts class.

Students looking for me to lecture from the front of the room with answers will be disappointed. I have more questions than answers. Although the seminar became more of a class as enrollment grew, I still intend to conduct the class principally as I would in a seminar with emphasis on reading and discussion.

Whiteboarding Credit

Yes, I meant "whiteboarding." If you're not an expert and are looking for plain English explanations of concepts like asset-backed securities, credit default swaps, and margin calls, check out the Marketplace Whiteboard. It's an effort by Paddy Hirsch, senior editor of American Public Media's Marketplace, to explain complicated financial concepts using everyday analogies that bring home the underlying ideas. The video podcasts are a good way to get educated on these topics.

Tying an Auto Industry Bailout to Health Care

I'm skeptical about a government-sponsored auto industry bailout and think chapter 11 probably provides the best policy tool to deal with the current problem. Although auto industry execs have balked at the idea of a bankruptcy filing, some have promoted the idea of a "prepackaged" chapter 11 as if it offers some sort of risk-free panacea. That is wrong, and I recommend Fred Tung's post over at The Conglomerate where he discusses the pitfalls that even a prepackaged chapter 11 might have. Discussing a prepackaged filing presents similar tough issues as a regular chapter 11. My task with this post, however, is not to take on the question of whether we should bailout the U.S. auto industry but, if we do decide to do it, one way we might do it better.

Former Credit Slips guest blogger and oberlawyer David Yen suggested to me that an auto industry bailout be tied to the industry's health care costs. This is a good idea and deserves some attention in the debate. The idea, as Yen wrote to me, is:

Instead of just giving the Big 3 auto companies money, we should give them tax credits tied to their health care bill. The tax credit would be structured so that if a more comprehensive health plan is ever enacted, there could be a relatively smooth transition. This would be a two fer.

The tax credit would incentivize the auto companies to ensure their workers have adequate health-care coverage, helping to alleviate one of the biggest financial stresses on the American middle class.

Do We Want More Consumer Lending?

Yesterday, Treasury Secretary Paulson announced a major shift in strategy for the federal government's financial rescue plan. Treasury now would make $50 billion available for lending to companies making credit card, automobile, and student loans. The idea is to jump start consumer lending sector, although I am not sure to what end. There is no doubt that the consumer lending sector has frozen up along with the other credit markets. What concerns me is that the Treasury's latest plan seems an attempt to return us to the same policies that got us to where we are today.

Worst Practices: Residual Interest

Professor LoPucki's APR issue might not be two-cycle billing as many of the commentators think. Just as likely, it is residual interest (a/k/a trailing interest), the often ignored, but just as potent cousin of double-cycle billing.

Residual interest has not gotten nearly as much attention as it should (and it is often confused with double-cycle billing). Residual interest is a nasty billing trap that drains away discretionary income (also known as potential savings) from American consumers, and should be at the top of the Congressional hit list for predatory credit card billing practices.

Behaviorally Informed Financial Services Regulation

A new policy paper issued by the New America Foundation and authored by Michael Barr, Sendhil Mullainathan, and Eldar Shafir argues that we need to move toward "behaviorally informed financial services regulation." By this the authors mean that financial services regulation should incorporate the insights of behavioral economics and cognitive psychology, regarding things like default rules, framing of information, and hyperbolic discounting.

This paper comes on the heels of Richard Thaler and Cass Sunstein's book Nudge, the culmination of their work in developing what they call "libertarian paternalism"--a soft-form version of paternalism that instead of mandating outcomes, such as requiring retirements savings, sets default rules and menu choices in a way that encourages them, such as making workers opt-out of retirement savings plans, rather than opt-in.

There's much to commend about this work (Barr et al., as well as Thaler & Sunstein), and the incorporation of behavioral economics into law has been an important development in the last decade or so of legal scholarship. I do not doubt that behaviorally informed financial services regulation would be an improvement over our current model. But I am dubious about its ultimate efficacy for three reasons.

The Moral Hazard of Treasury's "Equity" Injection

Treasury Secretary Paulson is jawboning banks to use the Treasury's capital injection to lend, rather than to just sit on the funds. This is very telling about the way Treasury sees the financial crisis and should concern us because it sets up a moral hazard and papers over the looming problem of the US economy: consumer overleverage.

Regulation Cannot Depend on Irrational Markets

At this point, it is all too clear that financial markets can get things wrong. This is not an isolated phenomenon. No, getting it wrong tends to be the name of the game for financial markets. Understanding that financial markets regularly underestimate or overestimate the risks of investing is crucial to the proper design of financial market regulations.

This is a Financial Crisis like Any Other – Treat it Like One

I wanted to thank Bob Lawless, Elizabeth Warren and Credit Slips to invite me back as guest blogger. It seems an appropriate time to discuss topics in two of my areas of expertise -- financial crises and retirement income security -- as they are directly related to the current financial turmoil.

The markets are crashing. This is a standard financial crisis, as many other countries experienced over the past twenty or so years. In a crisis four risks materialize: default risk, maturity risk, interest rate risk, and exchange rate risk. We are spared from the last one since the dollar dropped well before this crisis. The problem is that we are not adequately addressing the remaining risks.

Is the Crisis Real?

At a Harvard panel discussion yesterday, [correction**] Gregory Mankiw--Harvard economist and Chair of the President's Council of Economic Advisers 2003-2005, made an interesting point: The liquidity crisis isn't real.  Or, to restate it: Any liquidity crisis is caused by the promise of a government bailout. Greg said that his many friends in investment banking said that there is plenty of money to invest in financial services, but right now it is "sitting on the sidelines."  Why?  Because the financial services industry does not want to pay the terms required to get that money back in circulation (e.g., give up equity).  As he put it, why do business with Warren Buffett who will negotiate a tough deal, if you believe that the government will ride in soon with cheaper cash? 

Economics professor Ken Rogoff also talked about the need to shrink the financial services sector. He thinks it is good that the investment banking houses are failing and many people on Wall Street are losing their jobs because, in his view, we have an oversupply in that sector and our economy just can't support it.   

Greg's work with the current administration and Ken's background with the IMF and on the Board of the Federal Reserve add a certain credibility to their assessments of conditions on Wall Street.  If they are right, the $700 bailout is saving some investment bankers' jobs in the short term, but overall it is just making the financial system worse. 

The Bailout -- how do we know we really have a problem?

As the politics of the bailout get more and more heated, my friend and colleague Frank Pasquale, a regular at this blogging stuff who has also been thinking about the proposed bailout, was kind enough to comment on one of my earlier posts.  In essence, he asks how do we know that the credit markets would really collapse if the bailout legislation did not pass?

It is not an easy question to answer, given that the markets are largely anticipating some sort of bailout -- albeit with some doubt thrown into the mix.

I look to three factors:

1.  The interbank LIBOR rate is acting erratically.  This is the rate that banks charge each other for loans.

2.   Non-financial corporations are stockpiling cash in case of a lending market shutdown.

3.  The CDS market (admittedly part of the problem here) is also acting erratically, moving sharply based on the latest news about the government's actions.  The following chart (produced by Markit) tells the story last week with regard to the movement of two leading CDS index measures: