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Making Innovation More Competitive: The Case of Fintech

47 Pages Posted: 12 May 2017 Last revised: 17 Nov 2017

Rory Van Loo

Boston University School of Law; Yale Law School

Date Written: August 20, 2016

Abstract

Finance startups are offering automated advice, touchless payments, and other products that could bring great societal benefits, including lower prices and expanded access to credit. Yet unlike in other digital arenas in which American companies were global leaders, such as search engines and ride hailing, the U.S. has lagged in consumer finance. This Article posits that the current competition framework is holding back consumer financial innovation. It then identifies a contributor that has yet to be articulated: the organizational design of administrative agencies. Competition authority—including antitrust and the extension of business licenses—is spread across at least five regulators. Each is focused on other missions or industries. The Federal Reserve and other prudential regulators prioritize financial stability, which conflicts with their competition mandate. The Department of Justice (DOJ), hindered by statutes and knowledge gaps, devotes significantly fewer resources to banking than to other industries in merger review. No regulator has the right authority, motivation, and expertise to promote competition in consumer finance.

Innovation has raised the stakes for fixing this structural flaw. If allowed to compete fully, financial technology challengers (“fintechs”) could bring large consumer welfare advances and reduce the size of “Too Big To Fail” banks, thereby lessening the chances of a financial crisis. If allowed to grow unchecked, either fintech startups or the big banks acquiring them may reach the size of technology giants, thereby increasing systemic risk. Whether the goal is to benefit consumers, strengthen markets, or prevent crises, a reallocation of competition authority would better position regulators to navigate the future of innovation.

Keywords: heavily regulated industries, Consumer Financial Protection Bureau, Securities and Exchange Commission, Federal Deposit Insurance Corporation, Federal Trade Commission, Office of the Comptroller of the Currency, monopoly, systemic risk, safety and soundness, credit

Suggested Citation

Van Loo, Rory, Making Innovation More Competitive: The Case of Fintech (August 20, 2016). UCLA Law Review, Vol. 65, No. 1, 2017; Boston Univ. School of Law, Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2966890

Rory Van Loo (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Yale Law School

127 Wall Street
New Haven, CT 06511
United States

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