Federal Regulation of Margin in the Commodity Futures Industry – History and Theory

86 Pages Posted: 3 Nov 2010

See all articles by Jerry W. Markham

Jerry W. Markham

Florida International University (FIU) - College of Law

Date Written: Spring 1991

Abstract

Whether the federal government should regulate margin requirements for commodity futures contracts has been the subject of intensive debate for over fifty years. Congress has periodically rejected legislation that would have granted such authority. The stock market crash of 1987, and a subsequent mini-crash in 1989, has resulted in renewed demands for federal controls. The Securities and Exchange Commission (“SEC”) and the Department of the Treasury contend that such controls are necessary to prevent the near disastrous set of events that occurred during those market crises. The Commodity Futures Trading Commission (“CFTC”) and the commodity futures industry oppose federal controls on margin, and assert that market forces, not margins, were responsible for the events that occurred during the 1987 and 1989 market breaks.

This article addresses these events. Part I discusses the numerous, uniformly unsuccessful efforts by the federal government to impose margin controls on commodity futures in prior years. It also describes the nature of commodity futures margins and the problems encountered in the early history of federal regulation of futures trading. Part II describes federal margin controls over securities transactions and their background. It then examines the Federal Reserve Board's view that federal margin controls are no longer serving the regulatory purposes intended when Congress adopted the controls in 1934. Part III of the article discusses the recent efforts to obtain federal regulatory controls over commodity futures margins following the stock market crash of 1987. It also examines the increased demands by the SEC and the Department of Treasury for such controls as a result of the mini-crash of 1989.

Finally, Part IV of the article examines the merits of the arguments over the need for federal margin controls. Opponents contend that rigid federal margin requirements could impair market liquidity. Proponents of margin controls contend that federal regulation is necessary to reduce market volatility and to prevent another stock market crash. The article concludes that the evidence supporting the latter view is weak. Nevertheless, there is some support for the view that residual authority could be given to the Federal Reserve Board to guard against systemic risks

Keywords: margin controls, future market, regulation, commodity futures industry, stock market crash, Securities and Exchange Commission (SEC), Commodity Futures Trading Commission (CFTC), Federal Reserve Board, Commodity Exchange Authority (CEA)

Suggested Citation

Markham, Jerry W., Federal Regulation of Margin in the Commodity Futures Industry – History and Theory (Spring 1991). Temple Law Review, Vol. 64, No. 1, 1991, Florida International University Legal Studies Research Paper No. 10-35, Available at SSRN: https://ssrn.com/abstract=1701694

Jerry W. Markham (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States

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