2024-03-28T20:09:16Zhttps://scholarsbank.uoregon.edu/oai/requestoai:scholarsbank.uoregon.edu:1794/111372015-06-17T11:34:36Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p. 951-1058 : The Dodd-Frank Act: A Flawed and Inadequate Response to the Too-Bigto- Fail Problem
The Dodd-Frank Act: A Flawed and Inadequate Response to the Too-Bigto- Fail Problem
Wilmarth, Arthur E. Jr.
Dodd-Frank Wall Street Reform and Consumer Protection Act
United States. Dodd-Frank Wall Street Reform and Consumer Protection Act
108 p.
Dodd-Frank does contain useful reforms, including potentially
favorable alterations to the supervisory and resolution regimes for
large, complex financial institutions (LCFIs) that are designated as systemically important financial
institutions (SIFIs). However, this Article concludes that Dodd-
Frank’s provisions fall far short of the changes that would be needed
to prevent future taxpayer-financed bailouts and to remove other
public subsidies for TBTF institutions. As explained below, Dodd-
Frank fails to make fundamental structural reforms that could largely
eliminate the subsidies currently exploited by LCFIs.Parts II and III of this Article briefly describe the consequences and
causes of the financial crisis that led up to the enactment of the Dodd-
Frank. As discussed in those sections, LCFIs were the primary
private-sector catalysts for the crisis, and they received the lion’s
share of support from government programs that were established
during the crisis to preserve financial stability. Public alarm over the
severity of the financial crisis and public outrage over government
bailouts of LCFIs produced a strong consensus in favor of financial
reform. That public consensus pushed Congress to enact Dodd-
Frank. As Part IV explains, governmental rescues of LCFIs
highlighted the economic distortions created by TBTF policies, as
well as the urgent need to reduce public subsidies created by those
policies.
In an article written a few months before Dodd-Frank was enacted,
I proposed five reforms that were designed to prevent excessive risk
taking by LCFIs and to shrink TBTF subsidies. My proposed reforms
would have (1) strengthened existing statutory restrictions on the
growth of LCFIs; (2) created a special resolution process to manage
the orderly liquidation or restructuring of SIFIs; (3) established a
consolidated supervisory regime and enhanced capital requirements
for SIFIs; (4) created a special insurance fund, pre-funded by riskbased
assessments paid by SIFIs, to cover the costs of resolving failed
SIFIs; and (5) rigorously insulated FDIC-insured banks that are
owned by LCFIs from the activities and risks of their nonbank
affiliates.
Part V of this Article compares the relevant provisions of Dodd-
Frank to my proposed reforms and evaluates whether the new statute
is likely to solve the TBTF problem. Dodd-Frank includes provisions
(similar to my proposals) that make potentially helpful improvements
in the regulation of large financial conglomerates. The statute
establishes a new umbrella oversight body (the Financial Stability
Oversight Council) that will designate SIFIs and make
recommendations for their regulation. The statute also authorizes the
FRB to apply enhanced supervisory requirements to SIFIs. Most
importantly, Dodd-Frank establishes a new systemic resolution
regime (the Orderly Liquidation Authority (OLA)) that should
provide a superior alternative to the choice of “bailout or bankruptcy”
that federal regulators confronted when they dealt with failing SIFIs
during the financial crisis.
2011-05-02T18:11:41Z
2011-05-02T18:11:41Z
2011
Article
89 Or. L. Rev. 951 (2011)
0196-2043
http://hdl.handle.net/1794/11137
en_US
application/pdf
University of Oregon School of Law
oai:scholarsbank.uoregon.edu:1794/111302013-04-10T09:02:46Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p.785-810 : Standardization and Markets: Just Exactly Who Is the Government, and Why Should Antitrust Care?
Standardization and Markets: Just Exactly Who Is the Government, and Why Should Antitrust Care?
Sagers, Chris
26 p.
My assignment at the symposium at which this Article was
presented was to relate private standard setting to the
symposium theme: the “public and the private,” and the possibility
that whatever “boundaries” they may have are in “transition.” This Article is basically a sociological exercise. It will make two
basic arguments about how the role of standard setting in our
economy is at odds with the commonly assumed dichotomy between
bureaucracy and markets. First, I stress the great ubiquity and
influence of standard-setting activity in the United States. A large
proportion of the standards we adopt have more or less binding force,
and they exert influence far beyond high technology and
manufacturing. They are everywhere. Moreover, most matters
governed by standards are not subject to any government oversight.
They are formulated outside the government purview, and they get
their influence not from the formal force of law but from independent
forces. And yet, as I argue, those standards cannot easily be
explained as merely the results of market-driven influences. That is
to say, even though most standards are formulated outside any
government purview––and, therefore, under the bureaucracy-markets
dichotomy, should be explainable in some way as the product of
competitive markets––they are in fact not subject to price-competitive
pressures. In the discussion below, I relate this phenomenon to
theoretical developments in the social sciences concerning
“isomorphism” or “institutionalism” in markets. Second, the nature
of standards activities also tends to suggest that much of the social
decision making that occurs outside of markets is not actually overseen by government––contrary to the impression given by the
bureaucracy-markets dichotomy. This second issue is the flip side of
the first. The ubiquity of SSOs not only casts some doubt on the
prominence of markets as resource allocators but also casts some
doubt on government as markets’ chief alternative.
2011-04-28T21:32:27Z
2011-04-28T21:32:27Z
2011
Article
89 Or. L. Rev. 785 (2011)
0196-2043
http://hdl.handle.net/1794/11130
en_US
application/pdf
University of Oregon School of Law
oai:scholarsbank.uoregon.edu:1794/111292013-04-10T09:01:14Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p. 775-784 : Antitrust Immunities
Antitrust Immunities
Varney, Christine A.
10 p.
I am pleased to be here today to speak about an important issue in
American antitrust law: immunities and exemptions that limit or
preclude the application of antitrust laws to certain conduct or
industries. The core message of my remarks today is that the
changing dynamics of many industries coupled with the increasing
analytical rigor that courts and antitrust enforcement agencies apply
should alleviate the concerns that have been cited by advocates of
exemptions. Free market competition is a fundamental and core
principle of this country. As the bipartisan Antitrust Modernization
Commission recognized, just as private constraints on competition
can be harmful to consumer welfare, so can government restraints.
Thus, the use of such restraints should be minimized.
2011-04-28T19:36:58Z
2011-04-28T19:36:58Z
2011
Article
89 Or. L. Rev. 775 (2011)
0196-2043
http://hdl.handle.net/1794/11129
en_US
application/pdf
University of Oregon School of Law
oai:scholarsbank.uoregon.edu:1794/111392015-06-18T01:58:52Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p. 1107-1112 : Mission, Structure, and Governance in Future Electric Markets: Some Observations
Mission, Structure, and Governance in Future Electric Markets: Some Observations
Fox-Penner, Peter
Bishop, Heidi
6 p.
2011-05-02T18:40:43Z
2011-05-02T18:40:43Z
2011
Article
89 Or. L. Rev. 1107 (2011)
0196-2043
http://hdl.handle.net/1794/11139
en_US
application/pdf
University of Oregon School of Law
Energy markets
Electricity
oai:scholarsbank.uoregon.edu:1794/111282015-06-17T22:36:07Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p. 753-774 : An Introduction to the American Antitrust Institute’s 11th Annual National Conference: Are the Boundaries Between Public and Private in Transition?
An Introduction to the American Antitrust Institute’s 11th Annual National Conference: Are the Boundaries Between Public and Private in Transition?
Foer, Albert A.
Antitrust law
Health care reform
Energy reform
22 p.
The theme of the American Antitrust Institute’s (AAI) conference
on June 24, 2010, was embedded in a question: are the
boundaries between what is public and what is private in transition?
Our premise was that antitrust strikes a balance between government
regulation of the economy and an extremely free market system.
Another way to say this is that there is, on one hand, the public sector,
represented by the government, and on the other hand, the private
sector, represented by individuals, families, commercial units, and
various other associations. Our concern as experts in antitrust and
competition policy is in the nuances of the relationship between what,
at any point in time, is public and what is private because the balance
establishes the framework in which competition plays its role.
2011-04-27T21:20:22Z
2011-04-27T21:20:22Z
2011
Article
89 Or. L. Rev. 89 (2011)
0196-2043
http://hdl.handle.net/1794/11128
en_US
application/pdf
University of Oregon School of Law
oai:scholarsbank.uoregon.edu:1794/111382015-06-18T01:59:04Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p. 1059-1106 : Replacing Antitrust Exemptions for Transportation Industries: The Potential for a “Robust Business Review Clearance”
Replacing Antitrust Exemptions for Transportation Industries: The Potential for a “Robust Business Review Clearance”
Carstensen, Peter C.
Transportation
Antitrust law
48 p.
Congress has scattered among various statutes at least thirty
exemptions or modifications of antitrust law. The greatest
concentration of these exemptions is in the area of commercial
transportation where there are six such exemptions, the oldest relating
to ocean shipping. Indeed, until the deregulatory movement of the
1970s and 1980s, most rates, routes, and terms for transportation were
the subject of direct regulatory control. However, starting in the
1970s, legislative policy toward transportation dramatically changed.
Increasingly, federal policy favors market competition in
transportation sectors and discourages regulatory interference. Yet
the exemptions remain on the books, and companies regularly seek
their benefit. This leads to an empirical question, which will form the
core of this Article: what kinds of conduct are now being presented to
regulators for approval and antitrust immunity? The analysis of this Article proceeds as follows: Part I provides a
brief summary of the six statutes that provide immunity for some
aspect of transportation as well as the contemporary business review
clearance process used by the Antitrust Division; Part II sets forth
plausible alternative explanations for retaining antitrust immunity in
the transportation industries; Part III then provides the empirical part
of this Article, analyzing agency grants of antitrust immunity in light
of the possible explanations for the transactions being immunized;
Part IV explains why the exemption process is not well adapted to the
needs of the parties or the public interest; Part V presents the basic
concept of a robust business review clearance process; Part VI
considers two arguments against the proposal; Part VII then identifies and discusses some key elements of the process that involve
important choices if it were to be implemented.
2011-05-02T18:31:43Z
2011-05-02T18:31:43Z
2011
Article
89 Or. L. Rev. 1059 (2011)
0196-2043
http://hdl.handle.net/1794/11138
en_US
application/pdf
University of Oregon School of Law
oai:scholarsbank.uoregon.edu:1794/111352015-06-17T12:14:05Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p. 885-914 : Market Allocation in the Health Insurance Industry and the McCarran- Ferguson Act
Market Allocation in the Health Insurance Industry and the McCarran- Ferguson Act
Stutz, Randy
Health insurance
30 p.
This Article examines the scope of the McCarran-Ferguson Act under existing
Supreme Court precedent and reviews the sparse case law addressing
the MFA’s applicability to market allocation schemes in the insurance
industry, including the Blue Cross Blue Shield market allocation scheme. This Article
concludes that whether any market allocation scheme is exempt is a
close, fact-specific question that courts will not answer in the abstract.
On any set of facts, insurers will have considerable leeway in
attempting to prove that a given market allocation scheme should be
treated as the business of insurance and thus exempt if regulated by
state law. A clear determination that the BCBS market allocation
scheme is not exempt, or congressional action to repeal the MFA as to
the health insurance industry, would remove a primary obstacle to a
challenge of the scheme, but it is not clear whether this would affect
competitive dynamics among BCBS companies.
2011-05-02T17:57:25Z
2011-05-02T17:57:25Z
2011
Article
89 Or. L. Rev. 89 (2011)
0196-2043
http://hdl.handle.net/1794/11135
en_US
application/pdf
University of Oregon School of Law
oai:scholarsbank.uoregon.edu:1794/111312013-04-10T09:01:15Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p. 785-810 : The Affordable Care Act and Competition Policy: Antidote or Placebo?
The Affordable Care Act and Competition Policy: Antidote or Placebo?
Greaney, Thomas L.
Patient Protection and Affordable Care Act
market competition
36 p.
In the run-up to its enactment, the Patient Protection and Affordable
Care Act (ACA) elicited howls of protest from opponents who
claimed the federal government was taking over the American healthcare system, micromanaging medicine, and generally exposing
the nation to the bête noire of socialized medicine. Hyperbole,
misrepresentation, and chauvinism aside, these sound bites suffer
from a deeper flaw: they mischaracterize the fundamental thrust of the
new law. Though the ACA establishes significant new regulatory
authority, this is not a new development (indeed it can be faulted for
preserving pre-existing regulatory regimes), nor does it impair market
competition. To the contrary, much of the law aims at improving
conditions conducive to effective competition. With numerous
programs designed to correct perverse incentives in the payment
system, to mitigate market imperfections, and to make the delivery
system responsive to market signals, the ACA might well be
rechristened as the “Accommodation of Competition Act.”
2011-04-28T21:55:25Z
2011-04-28T21:55:25Z
2011
Article
89 Or. L. Rev. 811 (2011)
0196-2043
http://hdl.handle.net/1794/11131
en_US
application/pdf
University of Oregon School of Law
oai:scholarsbank.uoregon.edu:1794/111362015-06-17T12:01:18Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p. 885-914 : Antitrust Immunities
Antitrust Immunities
Farmer, Susan Beth
Antitrust law
10 p.
Iam pleased to be here today to speak about an important issue in
American antitrust law: immunities and exemptions that limit or
preclude the application of antitrust laws to certain conduct or
industries. The core message of my remarks today is that the
changing dynamics of many industries coupled with the increasing
analytical rigor that courts and antitrust enforcement agencies apply
should alleviate the concerns that have been cited by advocates of
exemptions. Free market competition is a fundamental and core
principle of this country. As the bipartisan Antitrust Modernization
Commission recognized, just as private constraints on competition
can be harmful to consumer welfare, so can government restraints.
Thus, the use of such restraints should be minimized.
2011-05-02T18:01:34Z
2011-05-02T18:01:34Z
2011
Article
89 Or. L. Rev. 885 (2011)
0196-2043
http://hdl.handle.net/1794/11136
en_US
application/pdf
University of Oregon School of Law
oai:scholarsbank.uoregon.edu:1794/111322015-06-17T19:48:34Zcom_1794_3786com_1794_7561com_1794_7550col_1794_11127
Oregon Law Review : Vol. 89, No. 3, p. 847-884 : The Provider Monopoly Problem in Health Care
The Provider Monopoly Problem in Health Care
Havinghurst, Clark C.
Richman, Barak D.
Health care providers
38 p.
Health care providers with market power enjoy substantially more
pricing freedom than comparable monopolists in other markets, and
the reason, which is not generally recognized, is U.S.-style health
insurance. Monopoly in health care markets, therefore, has
redistributive effects that are especially burdensome for consumers.
Significant allocative inefficiencies—albeit not the kind usually
associated with monopoly—also result, particularly when the
monopolist is a nonprofit hospital. We first note the need for a more
aggressive antitrust policy for the health sector, one that effectively
prevents the creation of new provider market power through mergers
and other alliances. An immediate need is to prevent the formation of
“accountable care organizations” that integrate providers horizontally
to achieve market power and not just vertically to achieve efficiency.
Because it is unlikely that courts or agencies could undo past mergers
that bestowed providers with monopoly power, we also suggest some
strategies for contesting existing monopolies. One strategy is to apply
antitrust rules against “tying” arrangements so purchasers can contest
providers’ profit-enhancing practice of overcharging for large bundles
of services instead of trying to exploit separately the monopolies they
possess in various submarkets. Another strategy is to use antitrust or
regulatory rules to prohibit anti-competitive provisions, such as “anti-steering”
or “most-favored-nation” clauses, in provider-insurer
contracts. The provider monopoly problem is severe enough that we
cannot exclude the more radical alternative of regulating provider
prices.
2011-04-28T22:03:47Z
2011-04-28T22:03:47Z
2011
Article
89 Or. L. Rev. 847 (2011)
0196-2043
http://hdl.handle.net/1794/11132
en_US
application/pdf
University of Oregon School of Law