Too Big for Administrative Law? FSOC Designations and the Fog of 'Systemic Risk'

43 Pages Posted: 7 Dec 2016

See all articles by Adam White

Adam White

George Mason University - Antonin Scalia Law School; American Enterprise Institute

Date Written: December 9, 2016

Abstract

The Dodd-Frank Act empowers the Financial Stability Oversight Council to designate nonbank financial companies as systemically important, and thus subject them to enhanced prudential supervision and regulation by the Federal Reserve, if the FSOC finds that the company “could” pose a “threat” to U.S. financial stability.

Questions of systemic financial risk require profoundly difficult predictive judgments, based on hypothetical judgments and worst-case scenarios, as evidenced not just by the 2007–2008 financial crisis that precipitated the law, but also by the broader intellectual and philosophical questions raised by the specter of low-probability, high-impact events — or, as they’re often called, “Black Swans.”

This paper traces the evolution of that statutory and regulatory framework, beginning with the 2007–2008 financial crisis and requiring the FSOC to push the limits of arbitrary-and- capricious agency action — and, most likely, to exceed these limits.

This preliminary draft was prepared for discussion at a conference on current issues in financial regulation, hosted by the Center for Study of the Administrative State, at George Mason University's Antonin Scalia Law School on December 9, 2016.

Keywords: Financial Stability Oversight Council, FSOC, Systemic Risk, SIFI, Black Swans, Knightian Uncertainty

Suggested Citation

White, Adam, Too Big for Administrative Law? FSOC Designations and the Fog of 'Systemic Risk' (December 9, 2016). Available at SSRN: https://ssrn.com/abstract=2880757 or http://dx.doi.org/10.2139/ssrn.2880757

Adam White (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

HOME PAGE: http://https://www.law.gmu.edu/faculty/directory/fulltime/white_adam

American Enterprise Institute ( email )

1150 17th Street, N.W.
Washington, DC 20036
United States

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