The Financial Crisis and the Response of the United States: Will Dodd Frank Protect Us from the Next Crisis?
David P. Cluchey
Professor of Law
January 1, 2011
The Financial Crisis of 2008: French and American Responses-Proceedings of the 2010 Franco-American Legal Seminar, Martin A. Rogoff, Michael Dixon, Eric Bither, et al., eds, 2011
In July of 2010 Congress enacted the Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd Frank Act”). The Dodd Frank Act is the primary legislative response in the United States to the financial crisis of 2007-09. It makes wide-ranging and significant changes to a number of aspects of financial services regulation. This article examines the eight most significant initiatives undertaken in the Dodd Frank Act; initiatives which are intended to avoid the next financial crisis, to give regulators the tools to deal with a future crisis when it occurs and to substantially increase the levels of protection provided to U.S. consumers of financial services. The Act creates a new Financial Stability Oversight Council with the broad responsibility to anticipate and to take measures to avoid the next financial crisis. It gives to the Federal Deposit Insurance Corporation the authority to liquidate very large financial services companies in an orderly manner in the event they fail. It creates a new National Insurance Office in the Department of the Treasury to provide limited oversight of our state-regulated insurance industry and, more importantly, to collect information on the risk to the U.S. financial system generated by the failure of the largest insurance companies. It provides for more intensive and effective regulation of credit rating agencies, overseen by a new Office of Credit Ratings at the Securities and Exchange Commission. It imposes registration requirements on hedge fund advisers and provides a process for collecting information on the risks posed to the U.S. financial system by the investment activities of hedge funds. It mandates significant new regulation at the Commodities Futures Trading Commission and the Securities and Exchange Commission over the trading of derivatives, requiring exchange-based trading for some classes of derivatives and for transparency in the trading of customized derivatives not suitable for exchanges. It requires a variety of corporate governance reforms for publicly traded companies, including a “say on pay” (a shareholders’ advisory vote on executive compensation plans), increased disclosures to shareholders, independent board compensation committees and consultants, and board risk committees for large financial services companies. Finally, it creates a major new agency, the Bureau of Consumer Financial Protection, located in the Federal Reserve System with significant powers to protect consumers in their purchases of a broad range of financial products. Each of these eight initiatives undertaken in Dodd Frank is complex and dependent to a significant degree on the promulgation of regulations for its implementation. It remains to be seen if these regulations will reflect the spirit of Dodd Frank’s ambitious and serious approach to avoiding or, at least, to providing the tools to survive the next financial crisis. This article offers a summary and some comments on the Dodd Frank initiatives outlined above. The ultimate effect of the Dodd Frank Act will depend to a large extent upon how it is implemented by U.S. financial regulators.
Number of Pages in PDF File: 43
Keywords: financial crisis, Dodd Frank, financial regulation, Financial Stability Oversight Board, derivatives regulation, regulation of hedge fund advisers, credit rating agencies, National Insurance Office, banking regulation, consumer financial services protection, Bureau of Consumer Financial Protection
Date posted: May 13, 2011 ; Last revised: March 1, 2012
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