Corporate Governance

The (Re)regulation of Financial Derivatives

By Harvard Law School Program on Corporate Governance

The US Congress is currently grappling with the issue of whether and how to regulate the market for financial derivatives. In my testimony before the Senate Committee on Agriculture yesterday (for historical reasons, the Agriculture Committee has jurisdiction over derivatives trading), I explored the theory and history of derivatives and derivatives trading. The full text of my testimony is available here.

My analysis leads to four conclusions. First, despite industry claims, derivatives contracts are not new and are not particularly “innovative.” Derivatives trading in the US dates back at least to the 1800s, and in other countries goes back much further. Second, healthy economies regulate derivatives trading. The only time a significant US derivatives market has been “deregulated” was during the eight years following passage of the Commodities Futures Modernization Act of 2000, which deregulated over-the-counter financial derivatives. Third, although the derivatives industry routinely claims that derivatives trading provides social benefits, virtually no empirical evidence supports this claim. At the same time, history and recent experience both confirm that unregulated derivatives trading is associated with pricing bubbles, added market risk, reduced investor returns, and increased fraud and manipulation.

Fourth and finally, as a historical matter derivatives regulation generally has not taken the form of either a heavy-handed ban on trading, or oversight by an omniscient regulator tasked with intervening on an ad hoc basis. Rather, derivatives markets have been successfully regulated through a web of ex ante procedural rules that include reporting requirements, listing requirements, margin requirements, position limits, insurable interest exceptions, and limits on enforceability. This traditional approach has a long track record of success.

Full post as published by The Harvard Law School Corporate Governance Blog on June 05, 2009 (boomark / email).