Regulating Financial Change: A Functional Approach

54 Pages Posted: 24 Jul 2014 Last revised: 13 Apr 2018

Date Written: March 2, 2015

Abstract

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 but arguably more fundamental 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.”

Keywords: financial systems, systemic risk, financial regulation

Suggested Citation

Schwarcz, Steven L., Regulating Financial Change: A Functional Approach (March 2, 2015). 100 Minnesota Law Review 1441 (2016); Duke Law School Public Law & Legal Theory Series Paper. Available at SSRN: https://ssrn.com/abstract=2469467 or http://dx.doi.org/10.2139/ssrn.2469467

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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