The Economic Impact of Eliminating Preemption of State Consumer Protection Laws
The University of Pennsylvania Journal of Business Law, Forthcoming
34 Pages Posted: 22 Sep 2009 Last revised: 10 Nov 2009
Date Written: September 1, 2009
In July 2009, the Obama Administration proposed legislation that would create a Consumer Financial Protection Agency. Among other items, the proposed legislation would eliminate federal preemption of state consumer protection laws, which would encourage states to reintroduce a scattering of local rules and regulations. The legislation is an outgrowth of a recent - though largely non-economic - literature linking preemption to all that ails the U.S. banking industry, including the subprime mortgage crisis. Since the National Bank Act of 1864, U.S. banks and their customers have benefited enormously from the preemption of state and local rules. Uniform, national regulatory standards have allowed banks to issue a consistent set of terms for mortgages, credit cards, and business loans. Literature focusing on the politics of preemption, rather than on the economic effects, largely misses the efficiency gains from standardizing regulatory policy. By encouraging competition between banks, uniform standards lead to lower costs of credit and greater capital availability. In this paper, we examine from an economic perspective why uniform national standards were originally needed in the U.S. banking industry, and continue to be so. The most significant preemption decisions made by the Office of the Comptroller of the Currency over the last two decades have enhanced competition among banks and thwarted price controls, increasing overall economic efficiency. Preemption has been used to open markets, expand access to banking services such as ATMs, democratize credit, and simplify regulatory compliance. Accordingly, placing barriers to preemption would raise bank operating costs and restrict bank operations, hurt customers, and suppress economic growth.
Keywords: banking, consumer protection, preemption, subprime mortgage crisis, Consumer Financial Protection Agency, CFPA
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