Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Listening to our "economic czar" (or should it be "dictator-presumptive"?)
|
Monday, September 22, 2008
Listening to our "economic czar" (or should it be "dictator-presumptive"?)
Sandy Levinson
Today's Washington Post has an article about the proposal that the $700 billion bailout include some salary limits on the Masters of the Universe who got us into this mess and then propose, by administering, without any apparent oversight, the bailout. It concludes as follows: Posted 10:42 AM by Sandy Levinson [link]
Comments:
As far as a "clean" bill is concerned, so far it's Paulsen who's loading it up. It now includes foreign holders and has been expanded to include many other forms of bad risk, not just MBS.
I understand and agree with your general concerns, but like Paulson, I don't see why limits on executive compensation should be a part of this bill. I've seen a lot of people make the argument that these executives are the ones who "got us into this mess," so they should be punished somehow. In the first place, it's not clear to me that everyone eligible to participate in the bailout is, in fact, responsible. In the second, I don't see that it's the government's place to punish people for non-criminal errors of judgment made in the market. Third, Paulson has a point when he says that compensation caps would discourage some firms from participating in the bailout. Fourth, it may not be such a bright idea to cap the salaries of many of the wealthiest members of our society when we're already facing massive deficits. Fifth, the angst over executive compensation seems as misguided to me as the nostalgia among some baseball fans for the days when players made 50,000 a year. If an enterprise is massively profitable, as Goldman Sachs was during Paulson's leadership or as Major League Baseball is, it seems only just that the people most responsible for the enterprise's success should make large sums of money. Where else should the money go? It isn't as if the starting salary at a place like Sachs isn't high enough already. Now, I do think it would be wise to cap severance packages at a certain (low) percentage of salary; otherwise, being fired isn't nearly as much of a disincentive to mismanagement as it ought to be. But I'm not sure that it's pragmatic to link that to participation in this bailout. Anyway, those are just my hurriedly jotted down thoughts.
All Congress needs to do is give the new entity the authority to renegotiate mortgage terms in any residential property it purchases. If Congress wants to add detail after holding hearings, do it during the next Congress.
Congress has no business deciding what bank shareholders decide to pay their management.
It gives me extreme pleasure to imagine what Bart
and Rush and Sean would be saying if this crisis had occurred about two years into an Obama administration.
farris w said...
It gives me extreme pleasure to imagine what Bart and Rush and Sean would be saying if this crisis had occurred about two years into an Obama administration. First, I would have moved all of my assets into gold figuring correctly that the Obama team would not have a clue how to deal with such a crisis (a view which has been confirmed over the past week). It would be scarce comfort at all to poke sticks at the fact that several members of this hypothetical Obama Administration were directly or indirectly involved in the Fannie and Freddie debacles as the financial sector melted down. I would be far more worried about how to keep my firm afloat during the oncoming recession/depression. Once again, too many of you folks appear to be utterly clueless about the enormity of the catastrophe we have hopefully just avoided.
Congress has no business deciding what bank shareholders decide to pay their management.
# posted by Bart DePalma : 1:33 PM It does if we're going to be the majority shareholders.
"Congress has no business deciding what bank shareholders decide to pay their management".
Agreed. I also agree that the president and his lackeys have no business doing this either. On the other hand, if you agree that something needs to be done to avoid a financial meltdown, which i take it you and i both agree upon, I would much rather place the burden of ultimate financial risk upon those who caused the problem in the first place and the shareholders who knowingly took the gamble of investing in these ponzi schemes, of whom i am not, than upon the average taxpayer, of whom i am one. considering the position mr. paulson comes from, i would not for an instant believe that subconsciously he would want not want to protect his own. considering this administration's history on just about everything, i would not trust them to oversee anything without proper congressional and judicial oversight. "i would be far more worried about now to keep my firm afloat during the oncoming recession/depression". for once, we completely agree, except to the extent that you believe that obama, who has reacted with a cool head this week, would be worse than the back and forth lurching of mccain, who started out saying there was nothing wrong with the economy, and now says we're in a crisis. panic managing at its worst.
Bart writes:'First, I would have moved all of my assets into gold figuring correctly that the Obama team would not have a clue how to deal with such a crisis
What if McCain/Graham get to drive? Once again, too many of you folks appear to be utterly clueless about the enormity of the catastrophe we have hopefully just avoided. You're projecting a bit too much here, bart. What's interesting in the linked article is that the author is advocating more of what got us into this mess. So now we need a 700 bn bailout (if it beats the alternative it'll be worth it), and if the author got his way, we'd need another in the likely future, given how the bailout up to now have been going over.
bitswapper said...
Bart writes:'First, I would have moved all of my assets into gold figuring correctly that the Obama team would not have a clue how to deal with such a crisis What if McCain/Graham get to drive? Back in 2005, McCain WAS attempting to head off the Fannie and Freddie mess with a bill tightening the standards for these loans. It was blocked by Dems on a party line vote. Once the Dems have signed off on this rescue bill, the GOP needs to pound them mercilessly on this issue. However, I have to assume that there will be a deal cut between the parties where the Dems will give Paulson what he wants in exchange for an agreement that everyone will point the fingers of blame at the banks and not at each other.
Bart writes:
Back in 2005, McCain WAS attempting to head off the Fannie and Freddie mess with a bill tightening the standards for these loans. I thought you disapproved of more federal bureaucracies. How would that act have headed off the current situation?
bit:
Freddie and Fannie ended up dominating the mortgage market while guaranteeing and pushing loans to non-credit worthy borrowers. Absent this subsidy and political pressure, it is highly unlikely that the banks would have risked their own money on these novel and questionable financial instruments. The McCain bill would have significantly tightened the standards for lending and many if not all of these sub prime instruments would not have been permitted. BTW, McCain was not on the banking committee where the Dems voted against the bill and indicated that they would filibuster the bill if it came for a vote. Consequently, the GOP leadership did not bring the bill to a vote on the Senate floor for McCain and everyone else to vote.
tray:
I don't see that it's the government's place to punish people for non-criminal errors of judgment made in the market. I don't see why the gummint can't attach strings to any aid they give. And if these people weren't doing anything wrong, then why do they need a bailout? Cheers,
It would be scarce comfort at all to poke sticks at the fact that several members of this hypothetical Obama Administration were directly or indirectly involved in the Fannie and Freddie debacles as the financial sector melted down.
Obama's thinking of appointing Gramm and Davis? News to me. Where'd you hear that? Cheers,
And if these people weren't doing anything wrong, then why do they need a bailout?
On my super-rudimentary understanding of what's happened (feel free, those of you who are more informed than I, to shoot holes in this), these companies hold mortgage-backed-securities that are backed by bad mortgages. They held these securities largely on the basis of extremely inaccurate ratings given by the rating agencies. So where exactly did the big financial institutions err? I see that mistakes were made on the parts of lenders, the rating agencies, but what should the investment banks have done differently? Predicted that the housing bubble would burst?
Bart writes:
The McCain bill would have significantly tightened the standards for lending and many if not all of these sub prime instruments would not have been permitted. It narrowed the applicability of who the Federal Housing Enterprises Financial Safety and Soundness Act applied to and tried to replace one bureaucracy with another. It also further loosened the dismantling of the Securities Exchange Act and would have made it even easier for banks to disguise bad mortgages. Its just not clear the the bill would have remedied the damage from GLB. The bill looked more political than meaningful. It didn't look to address the disguising of bad loans.
Congress has no business deciding what bank shareholders decide to pay their management.
Congress has no business giving money to enterprises who claim that they are failing and need help but are giving away the store to their CEO's. Look, the bank shareholders retain full authority to give their CEO all the money they want to. But, you know, if they care more about their CEO's pay than they do about keeping the enterprise going, they deserve what they get. The reality is that even though they are theoretically in charge, shareholders have very little real power to stop management from paying itself tons of money. A limit on compensation as part of a bailout package restores power that the shareholders should have had in the first place, by allowing them to choose whether paying huge salaries to the top executives is really more important than recovering something on their investment.
It may be stating the obvious, but it is for the Congress and not the Treasury to decide what legislation it will pass in response to the request the Administration has made. On all the evidence, the Democratic leadership is not minded simply to pass the measure the Administration has requested. One bitten, twice shy, perhaps?
Obama appears to be listening and taking advice from the right people. See Obama, Not McCain, Shows Steady Hand in Crisis: Albert R. Hunt - Washington Exec Ed - Bloomberg News. Obama will undoubtedly liaise closely with the Democratic leadership in Congress. Bart De Palma has boldly asserted with all his vast experience of regulatory issues: "Congress has no business deciding what bank shareholders decide to pay their management." This comment from the UK Regulator on executive compensation was interesting:- Lord Adair Turner told BBC News that the FSA would not regulate how much was paid, but would ask banks to explain their bonus structures. Banks found to encourage risky actions could be compelled to hold more capital, raising their costs. Some believe bonuses should be based on longer-term results. "What we are now doing is saying to banks, explain to us what your structure of bonuses are," said Lord Turner. "If we think they are in danger of encouraging people through that bonus structure to take risky actions which appear to look good at the time, but which create toxic assets for the future, then we have the power to say if you want to do that, you've got to hold a bit more capital because we think you're a more risky institution." Funny isn't it to see our resident LSR now wittering on about the "the enormity of the catastrophe we have hopefully just avoided." Yet he is still apparently not ready to embrace the idea that only more comprehensive and better enforced regulation can prevent such catastrophes, nor the idea that the ordinary working taxpayer should be insulated from the consequences, by the tax consequences of financing this bail-out being visited first on the financial services sector and then on those high net worth individuals with unearned income who took the misstated profits as dividends while the scams were going on - for him that was 'socialism'. I see no reason why the super-rich who took the profits while the going was good should not have some of the pain too - to each according to their means. FDR was right. I've posted this quote from FDR's first inaugural address before but it remains apposite as a healthy antidote to the loathsome spotted reptiles: Primarily this is because the rulers of the exchange of mankind's goods have failed, through their own stubbornness and their own incompetence, have admitted their failure, and abdicated. Practices of the unscrupulous money changers stand indicted in the court of public opinion, rejected by the hearts and minds of men. True they have tried, but their efforts have been cast in the pattern of an outworn tradition. Faced by failure of credit they have proposed only the lending of more money. Stripped of the lure of profit by which to induce our people to follow their false leadership, they have resorted to exhortations, pleading tearfully for restored confidence. They know only the rules of a generation of self-seekers. They have no vision, and when there is no vision the people perish. The money changers have fled from their high seats in the temple of our civilization. We may now restore that temple to the ancient truths. The measure of the restoration lies in the extent to which we apply social values more noble than mere monetary profit." Addendum: the decision of Goldman Sachs and Morgan Stanley to become bank holding companies and place themselves under banking regulation rather than SEC regulation was, I am told, not exactly voluntary - at issue was also their continued licences to operate in Europe where they both have a substantial presence. The transformation will require them both to raise a lot more capital (and operate on much more conservative prudential ratios) so I guess their 'cowboy' days are over.
Once again, too many of you folks appear to be utterly clueless about the enormity of the catastrophe we have hopefully just avoided.
Clueless? It's funny you should say that since time after time you have demonstrated that when it comes to politics you are quite simply barking mad.
Why does the Volokh Conspiracy have comments that are so much more civil than the ones here? Almost every post here leads to Bart DePalma making a conservative point in argumentative fashion, and then a whole bunch of people leap in with personal insults.
Almost every post here leads to Bart DePalma making a conservative point in argumentative fashion
"Argumentative" is being very kind. Baghdad Bart is using this site to spew rightwingnut propaganda.
Sean:
Why does the Volokh Conspiracy have comments that are so much more civil than the ones here? Almost every post here leads to Bart DePalma making a conservative point in argumentative fashion, and then a whole bunch of people leap in with personal insults. Because "Bart" is one of the most fact-challenged and dishonest disputants around. He miscites court cases, statutes, and black-letter law, he repeats assertions endlessly w/o support under the presumption that such is a valid form of "argument", and ignores substantive demolishments of his inane claims. If he tried any of this in an actual court of law, he'd get his keister kicked so hard he wouldn't be able to sit for months. This place would be plenty civil if "Bart" would just behave and honsetly address what others are saying. But he doesn't, so ridicule and sarcasm are about all he deserves. Cheers,
How can you respect Chris Dodd? He was one of the senators responsible for pushing the increases in housing loans partially responsible for this mess.
How can you respect Chris Dodd? He was one of the senators responsible for pushing the increases in housing loans partially responsible for this mess.
Logically speaking, one could respect Chris Dodd for lots of reasons even if he deserved blame for the current crisis. In fact, he doesn't deserve blame at all. The problem here isn't the housing loans per se; as jellin explains on the thread above, it's the leverage. If banks had continued in their traditional role as intermediaries, they could have worked out the mortgages. That would have meant losses, but nothing threatening to the whole system. What created this mess was the de-regulatory environment that Republican ideology has imposed on us for the last 25 years. That absence of regulation -- such as the exemptions from leverage rules given to Wall Street bankers starting in 2004 -- has caused the crisis.
Mark Field: The problem here isn't the housing loans per se; as jellin explains on the thread above, it's the leverage. ...
Post a Comment
Thank you, thank you, thank you. This is the essential point, but it is getting all but lost in the uproar.
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |