The corporate governance of banks

The study argues that commercial banks pose unique corporate governance problems for managers and regulators as well as for claimants on the banks' cash flows, such as investors and depositors. The authors support the general principle that fiduciary duties should be owed exclusively to shareholders. However, in the special case of banks, they contend that the scope of the fiduciary duties and obligations of officers and directors should be broadened to include creditors. In particular, the authors call on bank directors to take solvency risk explicitly and systematically into account when making decisions or else face personal liability for failure to do so.Bank management ; Bank supervision ; Corporate governance ; Stockholders

The False Promise of De-Regulation in Banking

Jonathan R. Macey The False Promise of De-Regulation in Banking Abstract This Article presents new approach to the concept of deregulation in financial services and particularly banking. Generally regulatory policy is thought to involve more or less straightforward choices between regulation and deregulation. Those most concerned with market failure and equality of outcomes favoring regulation and those with faith in markets and concerns about efficient outcomes favoring deregulation. This Article shows that government regulation, sometimes in heavy doses, is necessary in order for private markets to function effectively. Consequently, government has in important role to play in fostering markets. The policy choice between de-regulation, continued regulation, and even the initial decision whether to regulate in the first place, all have the political attributes typically attributed to regulation. Namely, these various policy choices all are informed by vigorous lobbying and other forms of rent-seeking. As a consequence, the process by which these policy decisions were reached can tell us a great deal about the likely effects of such choices, both in terms of efficiency and in terms of wealth distribution. Turning to the specific case of banking, the economic and political significance of deposit insurance must be understood. Deposit insurance is part of the fabric of democracy: politicians in a political marketplace characterized by rivalrous competition take ownership of bank failures, and must respond to such failures, either ex ante (before the failure) or ex post (after the failure), by providing assurances to depositors that they will be paid. Thus, in democracies, either de jure deposit insurance, or de facto deposit insurance in the form of post-failure guarantees must be taken into account when evaluating the merits of any proposed efforts to achieve deregulation

The False Promise of De-Regulation in Banking

Jonathan R. Macey The False Promise of De-Regulation in Banking Abstract This Article presents new approach to the concept of deregulation in financial services and particularly banking. Generally regulatory policy is thought to involve more or less straightforward choices between regulation and deregulation. Those most concerned with market failure and equality of outcomes favoring regulation and those with faith in markets and concerns about efficient outcomes favoring deregulation. This Article shows that government regulation, sometimes in heavy doses, is necessary in order for private markets to function effectively. Consequently, government has in important role to play in fostering markets. The policy choice between de-regulation, continued regulation, and even the initial decision whether to regulate in the first place, all have the political attributes typically attributed to regulation. Namely, these various policy choices all are informed by vigorous lobbying and other forms of rent-seeking. As a consequence, the process by which these policy decisions were reached can tell us a great deal about the likely effects of such choices, both in terms of efficiency and in terms of wealth distribution. Turning to the specific case of banking, the economic and political significance of deposit insurance must be understood. Deposit insurance is part of the fabric of democracy: politicians in a political marketplace characterized by rivalrous competition take ownership of bank failures, and must respond to such failures, either ex ante (before the failure) or ex post (after the failure), by providing assurances to depositors that they will be paid. Thus, in democracies, either de jure deposit insurance, or de facto deposit insurance in the form of post-failure guarantees must be taken into account when evaluating the merits of any proposed efforts to achieve deregulation

Objectivity, Proximity and Adaptability in Corporate Governance

Countries appear to differ considerably in the basic orientations of their corporate governance structures. We postulate the trade-off between objectivity and proximity as fundamental to the corporate governance debate. We stress the value of objectivity that comes with distance (e.g. the market oriented U.S. system), and the value of better information that comes with proximity (e.g. the more intrusive Continental European model). Our key result is that the optimal distance between management and monitor (board or shareholders) has a bang-bang solution: either one should capitalize on the better information that comes with proximity or one should seek to benefit optimally from the objectivity that comes with distance. We argue that this result points at an important link between the optimal corporate governance arrangement and industry structure. In this context, we also discuss the ways in which investors have "contracted around" the flaws in their own corporate governance systems, pointing at the adaptability of different arrangements.http://deepblue.lib.umich.edu/bitstream/2027.42/39651/3/wp266.pd

The Political Science of Regulating Bank Risk

The leading edge issue in banking law today is-or ought to be-bank risk. Every issue in banking law, whether it be bank failure policy, entry restrictions, geographic restrictions on the location of branches, product market restrictions on the scope of bank activities, minimum capital requirements or lending limits, was, at least ostensibly, promulgated in order to mitigate the problem of excessive risk-taking by banks. Now that the massive losses facing the federal insurance agencies responsible for protecting depositors\u27 savings have come to represent a realistic threat to the wealth of millions of investors, as well as a significant off-line deficit item on the federal budget, the leading edge issue in banking law is becoming a leading issue in domestic policy as well. This Article is not another description of the necessity of changing the direction of banking policy to deal more effectively with the all important problem of bank risk

The Limited Liability Company: Lessons for Corporate Law

This Article explores the implications of the emergence of the limited liability company for our understanding of corporate law. What does the modem emergence of the limited liability company tell us about the state of American corporate law? This Article argues that the emergence of the limited liability company has much to tell us about a variety of important topics in corporate law, particularly the reasons for requiring formal incorporation, jurisdictional competition for corporate charters, the costs and benefits of limited liability, and the structural problems that may hamper sweeping reform of corporate and tort law rules affecting enterprise and investor liability

The Internal and External Costs and Benefits of Stare Decisis

Far from merely providing judges with a useful decision-rule, the doctrine of stare decisis reflects the fundamental values of the legal process and the primordial tension within the common law between change and stability. For economists who do research on legal topics, stare decisis should be of particular interest for a variety of reasons. To begin with, the study of stare decisis may provide valuable insights into the way the judges actually go about deciding cases. Economists have had virtually nothing to say about judicial decisionmaking in general or stare decisis in particular. There simply are no economic theories at all to explain how independent judges, whose incomes are not contingent on the outcomes of cases, go about making decisions. A study of stare decisis is therefore of interest to economists because it provides insights into the preference patterns and utility functions of judges. In addition, the topic sheds light on the dynamics between the various hierarchies of courts, and illustrates the complex web of information transferred among judges, lawyers and litigants