By Steven L. Schwarcz. Full text here.
Domestic and international regulatory efforts to prevent another financial crisis have been converging on the idea of trying to end the problem of too big to fail—that systemically important financial firms take excessive risks because they profit from success and are (or at least, expect to be) bailed out by government money when they fail. The legal solutions being advanced to control this morally hazardous behavior tend, however, to be inefficient, ineffective, or even dangerous—such as breaking up firms and limiting their size, which can reduce economies of scale and scope; or restricting central bank authority to bail out failing firms, which (ironically) exacerbates the risk that an uncontrolled banking failure will trigger another crisis. This Article contends that the too-big-to-fail problem is exaggerated. It shows that the evidence for this problem is weak, conflating correlation and causation. It also shows that managerial incentives should mitigate the problem because managers who cause their firms to engage in excessive risk-taking with the expectation of a government bailout are taking serious personal risks. That raises the question of why systemically important firms sometimes do take excessive risks. The Article argues that such risk-taking is more likely to be caused by other factors, including a legally embedded conflict between corporate governance and the public interest that allows managers of those firms to ignore the costs of systemic externalities. To address this, the law should—and the Article shows that it realistically could—control excessive risk-taking more directly by requiring managers to account for systemic externalities in their governance decisions. It also argues for the creation of a privatized fund to minimize the public cost of bailing out systemically important firms that might fail (because of exogenous shocks, for example) notwithstanding reduced risk-taking.