Category: Financial Institutions


UCLA Law Review Vol. 63, Issue 1

Volume 63, Issue 1 (January 2016)

Navigating Paroline‘s Wake Isra Bhatty 2
Regional Federal Administration Dave Owen 58
Exhausting Patents Wentong Zheng 122



Post-Deportation Remedy and Windsor‘s Promise Kate Shoemaker 168
Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction Nick Warshaw 208

Private Lenders’ Troubling Influence on Federal Loan Policy

Hundreds of billions of dollars are at stake in the upcoming reauthorization of the Higher Education Act (HEA). Like the confirmation of a new Supreme Court justice, it may be delayed into 2017 (or beyond) by partisan wrangling. But as that wrangling happens, Washington insiders are drafting “radical” proposals to change the federal government’s role.

Faculty at all institutions need to examine these proposals closely. The law and public finance issues raised by them are complex. But if we fail to understand them, and to weigh in against the worst proposals, we could witness developments that will fundamentally change (and perhaps end) the university as we know it. Moreover, even if universities find ways to shield themselves from change, some proposals will leave students vulnerable to worse financing terms and lower-quality programs.

In a series of posts over the next few weeks, I’ll be explaining the stakes of the HEA reauthorization. For now, I want to start with a thought experiment on how education finance may change, based on recent activities of large banks and digital lending services I’ve studied. What would be ideal, in terms of higher education finance, for them?

Financiers consider government a pesky and unfair competitor. While federal loans offer options to delay payments (like deferment and forbearance), and discharge upon a borrower’s death or permanent disability (with certain limitations), private loans may not offer any of these options. Private lenders often aim to charge subprime borrowers more than prime borrowers; federal loans offer generally uniform interest rates (though grad students pay more than undergrads, and Perkins loans are cheaper than average). Alternatively, private lenders may charge borrowers from wealthy families (or attending wealthy institutions) less. Rates might even fluctuate on the basis of grades: just as some students now lose their scholarships when they fail to maintain a certain GPA, they may face a credit hit for poor performance.*

Now in conventional finance theory, that’s a good thing: the “pricier” loan sends a signal warning students that their course may not be as good an idea as they first thought. But the commitment to get a degree is not really analogous to an ordinary consumer decision. A simple Hayekian model of “market as information processor” works well in a supermarket: if bananas suddenly cost far more than apples, that signal will probably move a significant number of customers to substitute the latter for the former. But education does not work like that. College degrees (and in many areas further education) are necessary to get certain jobs. The situation is not as dire as health care, the best example of how the critical distinction between “needs” and “wants” upends traditional economic analysis. But it is still a much, much “stickier” situation than the average consumer purchase. Nor can most students simply “go to a cheaper school,” without losing social networks, enduring high transition costs, and sacrificing program quality.

For financiers, a sliding scale of interest rates makes perfect sense as “calculative risk management.” But we all know how easily it can reinforce inequality. A rational lender would charge much lower interest rates than average to a student from a wealthy family, attending Harvard. The lender would charge far more to a poorer student going to Bunker Hill Community College. “Risk-based pricing” is a recipe for segmenting markets, extracting more from the bottom and less from the top. The same logic promoted the tranching of mortgage-backed securities, restructuring housing finance to meet investor demands. Some investors wanted income streams from the safest borrowers only–they bought the AAA tranches. Others took more risk, in exchange for more reward. Few considered how the lives of the borrowers could be wrecked if the “bets” went sour.

Now you might ask: What’s the difference between those predictable disasters, and those arising out of defaults of federal loans? They’re very difficult to discharge in bankruptcy. But federal loans have income-based repayment options. For loans made after 2007, lenders in distress can opt into a payment plan keyed to their income level, which eventually forgives the debt. Private loans don’t offer IBR.

But IBR is not that great a deal, you may counterAnd in many cases, you’re right, it isn’t! Interest can accumulate for 20 or 25 years. Then, when the debt is finally forgiven, the forgiven amount could be treated as income which must be taxed. There is no IBR for the tax payment. Moreover, the impact of growing debt (even it is eventually to be forgiven) on future opportunities is, at present, largely unknown. Many consumer scores may factor it in, without even giving the scored individual notice that they are doing so.

So why keep up the federal role in higher ed finance? Because one key reason federal loans are so bad now is because private lenders have had such a powerful role in lobbying, staffing the key loan-disbursing agency (Department of Education), and supporting (indirectly or directly) think tank or analyst “research” on higher ed finance. When government is your competitor, you use the regulatory process to make the government’s “product” as bad as possible, to make your own look better by comparison. And the more of the market private lenders take, the more money they’ll have to advocate for higher rates and worse terms for federal loans–or getting rid of them altogether.


*The CFPB has warned lenders that using institutional cohort default rates to price loans could violate fair lending laws, and that may have scared some big players away from doing too much risk based pricing. However, with the rise of so many fringe and alternative lenders, and the opacity of algorithmic determinations of creditworthiness, the risk of disparate impact is still present.


The Arc of Covenant Banking: Hill & Painter’s Better Bankers, Better Banks


University of Minnesota law professors Claire Hill and Richard Painter do a great service in their new book, Better Bankers, Better Banks, by focusing concretely on an issue that many have discussed but few have offered to change: how to align the incentives of bankers and banks.

They argue that “bankers [should] be personally liable from their own assets for some of their banks’ debts” for money owed due to insolvency, fines, or fraud-based liability. Thus, they propose formal, liability-creating contracts—which they call “covenants”—between banks and bankers: “Covenant banking operates directly on bankers’ monetary rewards” because, under their proposal, “highly paid bankers would bear some personal liability if their banks become insolvent, are fined by regulators, or are found liable in civil cases involving fraud. The liability would not be unlimited, but should potentially adversely affect the banker’s standard of living.”

The Hill/Painter proposal is valuable and interesting both in its own right, and for the harder questions that it raises.

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Better Bankers Book Symposium – a Perspective from Across the Pond

“Better Bankers, Better Banks” is an intriguing account of all the scandals and problems in banking that we appear to have become accustomed to. Professors Hill and Painter offer a fascinating new proposal on how to address these problems, which is as topical in the US as it is in Europe. In short, what their proposal amounts to is to rebalance the upside and the downside participation of bank managers in the profits and losses of their bank. Whereas before the crisis, regulatory efforts have long sought to align bankers’ incentives with the upside (by offering variable pay, bonuses, etc), there was very little attention on how to account for the downside risk. The idea of “covenant banking”, i.e. a form of self-commitment in the firm’s losses, is an important contribution to the current debate on how to improve banking culture post-crisis.

Inevitably, as soon as a proposal is on the table, market participants will want to know how it works in practice. In the following, I offer a few thoughts and questions that may broaden the debate towards its effects and implications.

First, how strongly would we encourage banks (or bankers) to make use of covenant banking. I am a little sceptical on whether they might adopt covenants deliberately. Some form of a government nudge would certainly be required. Different nuances in the regulatory toolkit are available. It seems to me that offering a best practice recommendation or a legislative menu with different options could be a sensible step to take. Findings from behavioural science support the effectiveness of such soft law standards.

Secondly, how will the market respond? Will clients and customers appreciate the stronger commitment that an individual banker’s “covenant” involves? Will they be able to digest the additional information appropriately? I would argue that a certain standardization of the covenant might help. If a small number of different covenants were “on offer”, endorsed by legislature or best practice code, the public would be much better placed to appreciate them. By contrast, if you leave firms to develop a million different tailor-made types – with exceptions, limitations and exclusions – creditors will not be able to price in their value correctly. This even more when you add an international perspective – jurisdictions will differ in their prescriptions and make it difficult to appreciate them in cross-border cases.

My final point is a little provocative: do we really get “better” bankers by making them liable for the firm’s debts? My pessimistic view of human nature is that bankers will still have strong incentives to work around their covenants – and possibly even use them as a commitment signal but do the opposite. Monitoring by creditors is therefore essential. This is another reason for why the rules should be clear, transparent, and somewhat standardized.

Hill and Painter have started a captivating journey, and I congratulate them on designing a stimulating new conceptual framework to address evil banking behaviour. I am convinced that their book will be the starting point for a long and fruitful discussion.


The Larger Debate on Federal Credit Programs

Earlier today I criticized a New York Times proposal regarding law school loans. Whatever you think about the proper cost of legal education, the NYT is off-base, because it ignores the role of private finance in our economy.

Education finance policy is difficult because it raises fundamental issues in political economy and public finance generally. It also only makes sense with some historical context.

Back in the 1970s and ’80s, an anti-tax coalition operated on the presumption that state support for education had to drop. Financialization plugged the resulting hole in funding: responsibility for paying for school shifted from (relatively well-off) taxpayers to students. By the 1990s, private lenders realized that they could make tremendous profits from such loans–particularly if they could privatize profits, while sticking the government with losses. That arrangement became so scandalous by 2010 that it was curtailed as part of PPACA. The federal government directly offers many loans now.

But the private lenders did not simply give up. Current efforts to “reform” federal student loans are part of their much larger effort to shrink federal credit programs. The basic idea is simple: to force the US government to account for its credit programs as if it could and should charge interest rates (and impose terms) prevailing among private lenders.

It’s a strange move, especially since, as Matt Yglesias states, “costs reported in the budget are generally lower than the costs to the most efficient private financial institutions because the government’s costs of funds are in fact lower.” David Kamin has also questioned this accounting tactic. But if it succeeds, there is little rationale for any federal credit program–it will simply duplicate extant private lenders’ work. That redundancy will lead to further privatization of federal credit programs, raising costs to borrowers and diverting more money to the finance sector. It’s not a great outcome for students–but it is a logical outgrowth of reflexive hostility to the type of state intervention that actually could improve students’ finances while maintaining quality.

The Black Box Society: Interviews

My book, The Black Box Society, is finally out! In addition to the interview Lawrence Joseph conducted in the fall, I’ve been fortunate to complete some radio and magazine interviews on the book. They include:

New Books in Law

Stanford Center for Internet & Society: Hearsay Culture

Canadian Broadcasting Corporation: The Spark

Texas Public Radio: The Source

WNYC: Brian Lehrer Show.

Fleishman-Hillard’s True.

I hope to be back to posting soon, on some of the constitutional and politico-economic themes in the book.

From Piketty to Law and Political Economy

Thomas Piketty’s Capital in the 21st Century continues to spur debate among economists. It has many lessons for attorneys, as well. But does law have something to offer in return? I make that case in my review of Capital, focusing on Piketty’s call for a renewal of the social science of political economy. My review underscores the complexity of the relationship between law and social science. Legal academics import ideas from other fields, but also return the favor by informing those fields. Ideally, the process is dialectic, with lawyers and social scientists in dialogue.

At the conference Critiquing Cost-Benefit Analysis of Financial Regulation, I saw that process first hand in May. We at the Association of Professors of Political Economy and the Law (APPEAL) are planning further events and projects to continue that dialogue.

I also saw a renewed synergy between law and social sciences at the Rethinking Economics conference last month. Economists inquired about bankruptcy law to better understand the roots of the financial crisis, and identified the limits that pension law places on certain types of investment strategies.

Some of the organizers of the conference recently took the argument in a new direction, focusing on the interaction between Modern Monetary Theory (MMT) and campaign finance reform. “Leveling up” modes of campaign finance reform have often stalled because taxpayers balk at funding political campaigns. Given that private campaign funders’ return on investment has been estimated at 22,000%, that seems an unwise concession to crony capitalism. So how do we get movement on the issue?
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JOBS Act, Sarbanes-Oxley and US Stock Market Competitiveness

Steve Bainbridge posts that we now have evidence that the facilitations that the JOBS Act provided to emerging growth companies for going public are ineffective. Steve also points out that since the early 2000s we have seen the US stock markets appearing less competitive than foreign markets. Let me add that we also have evidence that the Sarbanes-Oxley Act of 2002 (SOX) lengthened the time to going public and increased the probability of a private sale instead of an IPO. (SSRN has tons of papers on the mostly negative consequences of SOX but also a couple of papers suggesting indeterminate answers.) This means that SOX moved returns away from entrepreneurs and public investors to private equity funds. Although the costs of compliance have dropped and perhaps we cannot definitively say that SOX was a mistake, we cannot say it was a success either and the JOBS Act did not cure the inefficiencies that SOX produced. So, it is time to accept that the way to restore competitiveness is to repeal the dubious SOX provisions. Read More


Argentina and Sovereign Insolvency

Thanks to Gerard for the nice introduction. Indeed, I am here to rant about bankruptcy, securities, and corporate, mostly. The vineyard lies dormant now (but any offers for it will be considered).

So, how about Argentina and Elliot? We pay our nice subsidy to the IMF out of our taxes and it finances sovereign restructurings by essentially buying the vote of bondholders into accepting restructurings that are good for both the bondholders and the insolvent sovereign (compared to it wallowing in a depression for years). Then, after the sovereign turns around its economy, our own courts let the holdout bondholders collect on the bonds that, if everyone had held out as they did and the sovereign stayed in a depression for decades, would not have had much value.

We could have a sovereign insolvency regime but the banks opposed the IMF charter amendment to that effect and it did not go through. Or our courts could go back to their equity receivership jurisprudence and try to fashion a sovereign insolvency regime.

Instead, our courts give ammunition to the holdouts, making bonds of insolvent sovereigns more attractive gambles, and pushing up the amount that the IMF will have to pay to buy out the bondholders’ vote in the next restructuring.

How would a sovereign insolvency regime work? It would not be pretty but it would be much prettier than this. Think of Detroit. It makes a bankruptcy filing and proposes a plan that keeps taxes rational and the city viable. No lender of last resort needs to get involved. Bondholders cannot extract any favorable bargains. Our tax dollars do not get wasted.

Failed Fiduciaries: Pension Funds’ Alliances with Private Equity Firms

As Yves Smith has reported, “the SEC has now announced that more than 50 percent of private equity firms it has audited have engaged in serious infractions of securities laws.” Smith, along with attorney Timothy Y. Fong, has been trying to shed light on PE arrangements for months, but has often been blocked by the very entities taken advantage of by the PE firms. As Smith concludes:

[I]nvestors have done a poor job of negotiating agreements so that they protect their interests and have done little if any monitoring once they’ve committed to a particular fund. As we’ll chronicle over the next few days, anyone who reads these agreements against the disclosures that investors are now required to make to the SEC and the public in their annual Form ADV can readily find numerous abuses. . . . But rather than live up to their fiduciary duties, pension funds that have invested in private equity funds haven’t merely sat pat as they were fleeced; even worse, they’ve been staunch defenders of the private equity industry’s special pleadings.

The SEC Chair has also harshly criticized the arrangements. States are making token efforts to reform matters after being exposed, but don’t expect much substantive to be done. The key problem is the distinction between those running pension funds, and what Jennifer Taub calls the “ultimate investors“–those whose accounts are being managed. Until their interests are better aligned, expect to see more sweetheart deals via “alternative investments.”