The Failure Process Imposed Upon Financial Institutions
The concept of systemic risk sprung to the foreground of the public’s consciousness during the financial crisis of 2007-8 as the Too Big To Fail (TBTF) banks were bailed out by the various US Federal Government agencies e.g., US Treasury via the Troubled Asset Relief Program (TARP) and the US Federal Reserve via Quantitative Easing (QE). However, as it turns out, the concept of systemic risk is not so easy to define in legal terms—as illustrated by the difficulty in nailing down the definition by US Congress via the Dodd-Frank legislation or by the US Treasury and the Federal Deposit Insurance Corporation (FDIC) via regulation (Horton, 2012). One thing is certain—the public has no stomach for any further bailouts, thus, the era of TBTF banks and non-bank financial companies has ended.
The FDIC, under new regulatory powers granted by Dodd-Frank, will resolve systemically important bank and non-bank financial institution failures i.e., bank and non-bank financial institutions that become insolvent (Horton, 2012). This process is similar to the way that the FDIC utilizes its traditional regulatory powers to resolve non-systemically important bank failures. However, non-systemically important non-bank financial institutions continue to be able to utilize bankruptcy as an option to resolve insolvency (Smith, 2011). While the FDIC has the regulatory power to resolve systemically important bank and non-bank financial institution failures it [the FDIC] will not be able to utilize them until the next financial crisis, which means the FDIC’s primary role will be to resolve non-systemically important bank failures (Guynn, 2012).
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Horton, B. J. (2012). When does a non-bank financial company pose a “systemic risk”? A proposal for clarifying Dodd-Frank. Journal of Corporation Law, 37(4), 815–848.
Morris, C. S. (2011). What should banks be allowed to do? Economic Review - Federal Reserve Bank of Kansas City, 55–80.
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