The Functional Regulation of Finance

Steven L. Schwarcz

Duke University School of Law

June 16, 2014

How should we think about regulating our dynamically changing financial system? Existing regulatory approaches have two temporal flaws. The obvious flaw, driven by politics and human nature (and addressed in other writings), is that financial regulation is overly reactive to past crises. This article addresses a less obvious flaw: that financial regulation is normally tethered to the financial architecture, including the distinctive design and structure of financial firms and markets, in place when the regulation is promulgated. In order to effectively address future crises, this article argues, financial regulation must transcend that time-bound architecture. This could be done by regulating the underlying economic functions of the financial system — the provision, allocation, and deployment of financial capital — as well as the financial system’s capacity to serve as a network within which those functions can be conducted. The article analyzes how to design and implement such a “functional” approach to financial regulation. Although this approach is primarily normative, it provides regulatory ordering principles that should have practical utility — not only as a set of standards to inform actual regulatory design but also as a counterweight to the prevailing view that macroprudential regulation of systemic risk can be adequately served by an ad hoc assortment of regulatory “tools.”

Number of Pages in PDF File: 49

Keywords: financial systems, systemic risk, financial regulation

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Date posted: May 17, 2014 ; Last revised: December 28, 2014

Suggested Citation

Schwarcz, Steven L., The Functional Regulation of Finance (June 16, 2014). Available at SSRN: https://ssrn.com/abstract=2437544 or http://dx.doi.org/10.2139/ssrn.2437544

Contact Information

Steven L. Schwarcz (Contact Author)
Duke University School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7060 (Phone)
919-613-7231 (Fax)

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