NYTimes Reviews Judge Posner's Latest Book

Uncertainty vs. Risk
Niall Ferguson
The New York Times
April 29, 2010

It is three years since the failure of two Bear Stearns hedge funds signaled the start of the biggest financial crisis since the Great Depression, and the air is thick with the sound of stable doors being shut long after the horses bolted. At some point this year a vast new picket fence will be built around the entire ranch, in the form of a new financial regulation act.

At the time of writing, two bills exist. The measure devised by Representative Barney Frank and passed by the House last December would (among other things) set up a consumer financial protection agency and regulate the market for exotic financial contracts known as derivatives. It would also empower regulators to prohibit forms of compensation for financial executives that are deemed to encourage excessive risk-­taking, and create a new resolution authority to manage bankruptcies of large financial institutions, backed with a $150 billion contingency fund.

Senator Christopher J. Dodd’s bill, unveiled in March, would also create a new entity to protect consumers, but it would leave the issue of executive compensation to bank shareholders. And its resolution contingency fund would be one-third the size of the one envisaged by the House bill.

Both these measures recall the old British sitcom “Yes Minister,” in which all crises elicited the following response from the clueless politician Jim Hacker: “Something must be done. This is something. Therefore we must do it.” As Richard A. Posner argues in “The Crisis of Capitalist Democracy,” Congress is rushing to devise remedies for a crisis we have not yet properly understood. Indeed, the House bill explicitly commissions studies of the causes of the crisis while at the same time legislating to prevent its recurrence.

Richard A. Posner