ESSAY
After the Bailout: Regulating Systemic Moral Hazard
Karl S. Okamoto* 
57 UCLA L. Rev. 183

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Abstract

How do we prevent excessive risk taking in the financial markets? This Essay offers a strategy for regulating financial markets to better prevent the kind of disaster we saw during the Financial Crisis of 2008. By developing a model of risk-manager decisionmaking, this Essay illustrates how even “good people” acting in utterly rational and expected ways brought us into economic turmoil. The assertion of this Essay is that the root cause of the Financial Crisis was systemic moral hazard. Systemic moral hazard poses a unique challenge in crafting a regulatory response. The challenge lies in that the best response to systemic moral hazard is “predictive prevention.” It is inherently difficult to reward individuals for producing predictive prevention. Unsurprisingly, markets fail to produce it at optimal levels and thus cannot prevent systemic moral hazard and the kind of crises that ensue. The difficulty in valuing predictive prevention is seen when we model how risk managers make decisions regarding the prevention of excessive risk. The model reveals how the balance can be tipped in favor of risk taking that leads to systemic failure and broad social harm. The model also reveals how regulation might work to reset the balance to one that is superior for society. We can achieve optimal risk- taking decisionmaking in two ways: (1) by requiring all asset managers in the market to put their own money at risk in their trading decisions; and (2) by requiring all asset managers to use “best practices” in managing risk, or else be subject to legal liability. These prescriptions arise out of a regulatory strategy that accepts the need to balance the benefits of risk taking in financial markets (and the consequent inevitabil- ity of some financial failure) with the desire to avoid excessive risk taking and the costs of systemic collapse. The focus of this strategy is on those instances in which we cannot trust ourselves to be prudent.


* Director, Program in Business & Entrepreneurship Law and Associate Professor of Law, Earle Mack School of Law, Drexel University. B.A. 1982, J.D. 1985, Columbia University.

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