The U.S. Financial Meltdowns: Then and Now

Bank Failures created in the 1930’s

Banks during the 1930s were vastly embarking into an unforeseen calamity; causation leading to the bank failures is still open to interpretation. At the turn of the 20th century, banks began to “boom.” The next two decades saw an increase in the numbers of banks that peaked in 1921 with roughly 31,000 banks in operation (Walter, 2005). So, what caused the catastrophic ripples, throughout the banking industry, that ended with the onset of the Great Depression?

Did the Bank of the United States (BUS) lead to the economic downswing during the early 1930s; thus becoming the catastrophic ripple? BUS, prior to its failure in December, 1930, was the twenty-eight largest commercial bank in the country (Trescott, 1992). To better understand the causation of bank failures during the 1930s, I will explore previous literature that attempt to scrutinize the Bank of the United States.

Milton Friedman and Anna J. Schwartz’s research, A Monetary History of the United States, has been said to be “the leading and most persuasive explanation of the worst economic disaster in American history,” by Ben S. Bernanke (Bernanke, 2002). Friedman and Schwartz’s research advocates that bank failures, during the “Great Contraction of 1929-33,” arise from monetary issues and view bank failures as a result of unwarranted “panic” and that failing banks were in large measure illiquid rather than insolvent (Calomiris, 2007). Others, including Paul B. Trescott, “argue that the bank’s closing was a response to actual and threatened insolvency, not illiquidity (Trescott, 1992).”

It is important to understand if banks at the time were failing due to becoming illiquid or insolvent. If banks, during the Great Contraction, were illiquid at the time then one could be lead to believe that contagion and/or bank runs might be at fault. On the contrary, if banks at the time were insolvent then we might need to look into other reasons as to why banks were failing.

One could easily come to the conclusion that banks, during the Great Contraction, were indeed illiquid. This conclusion could be explained through the creation of the Federal Deposit Insurance Corporation (FDIC). The creation of the FDIC in 1934 and the simultaneous halt of bank failures are both valid points that insinuate strong evidence that contagion may have played a factor. The FDIC insured deposits to prevent unfounded bank failures caused by contagion (Walter, 2005). The creation of the FDIC may have calmed the ripples moving throughout the banking industry, but could there be any other reason besides contagion that stopped the ripples?

There are a few explanations that might lead us to believe that the FDIC’s halt of bank failures was not caused by contagion. First, deposit insurance augmented the profits of risky banks, protecting them from failure. Second, the creation of deposit insurance undercut a market process that caused supervisors to close troubled banks quickly (Walter, 2005). So, if contagion was not a factor then maybe banks were not illiquid but rather insolvent.

Paul B. Trescott, professor of economics at Southern Illinois University, states that BUS was fairly liquid in the few months prior to its close in December, 1930. Trescott, also elaborates on the Bank of United State’s management strategy. These three elements are expansion through mergers and bank purchases, involvement with a series of securities affiliates and a syndicate for stock trading, and extensively investing in real estate development projects (Trescott, 1992). BUS was heavily into real estate lending, as were other banks in the New York area, but the loans lacked the usual safeguards relating to borrowers’ equity and collateral. Combine the risky lending with the heavy investing in BUS stocks and you have a recipe for disaster. The FDIC insurance allowed banks, which might have operated like the Bank of United States, to gain significant profits in subsidy by allowing them to take more risks. In this case the FDIC ended bank failures by providing insolvent banks a way to stay afloat. In either case, banks being illiquid or insolvent, the creation of the FDIC terminated bank failures during the Great Contraction.

Bank Failures during the Financial Crisis of 2007

During the 1980s the United States was going through a Savings & Loans (S&L) Crisis. The S&L crisis, brought on by years of deregulation and moral hazard (Degen, 2009), was bringing down the public’s confidence in the thrifts markets. Runs began to hit the S&L industry as values started to drop. Much like the FDIC, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), in an effort to restore confidence, this time in the thrift industry.

The purpose of FIRREA, as set forth in Section 101 of the bill, was to promote a safe and stable system of affordable housing finance; improve supervision; establish a general oversight by the Treasury Department over the director of the Office of Thrift Supervision; establish an independent insurance agency to provide deposit insurance for savers; place the Federal Deposit Insurance System on sound financial footing; create the Resolution Trust Corporation; provide the necessary private and public financing to resolve failed institutions in an expeditious manner; and improve supervision, enhance enforcement powers, and increase criminal and civil penalties for crimes of fraud against financial institutions and their depositors (Law Brain, 2010).

FIRREA gives the FDIC the duty of insuring the deposits of savings associations as well as banks. In addition, FIRREA created a separate fund under the management of the FDIC called the FSLIC Resolution Fund. The FSLIC Resolution Fund generally assumed all of the "assets and liabilities" of FSLIC as of the day before its abolition (Moss, Randolph D., 1998).

Did the creation of FIRREA settle the S&L industry by providing these institutes with relief from contagion or did it allow for more risky behavior? The next two decades are again cast with troubles. First, with the “dot com” bust in the 1990s, then the housing bubble bursting in 2006, and followed by the “shadow banking” industry in 2008. This rapid growth followed by rapid burst is starting to become the norm within our economy. A norm, if left unchecked, could devastate the United States.

Summery

The FDIC and FIRREA were two pieces of legislation that were created out crisis. We may not all agree as to the exact causes of the crisis but we can agree that something needed to be done. Determining if the banking industry was illiquid or insolvent during these crises may be hard to discover and I believe that both played their part. As legislators rush to fix one part of our broken financial system the industry will leap to invest in another profiteering idea until it bursts. This herd mentality, which the financial industry’s management must refrain from, is the only way to slow down the crises. As long as the banking industry is allowed to take risks, speculate values, and use loopholes, we should all prepare ourselves for another bailout.

References

Bernanke, B. S. (2002, November 8). On Milton Friedman's Ninetieth Birthday. Retrieved April 5, 2010, from Federal Reserve: http://www.federalreserve.gov/BOARDDOCS/SPEECHES/2002/20021108/default.htm

Calomiris, C. W. (2007). Bank Failures in Theory and History: The Great Depression and Other "Contagious" Events.

Cecchetti, S. G. (2008). Monetary Policy and the Financial Crisis of 2007-2008.

Degen, R. J. (2009). Moral hazard and the financial crisis of 2007-9: An Explanation for why the subprime mortgage defaults and the housing market collapse produced a financial crisis that was more severe then any previous crashes (with exception of the Great Depression of 1929). Glob Advantage.

Law Brain. (2010, March 16). Savings and Loan Association. Retrieved April 6, 2010, from Law Brain: http://lawbrain.com/wiki/Savings_And_Loan_Association

Moss, Randolph D. (1998, July 22). APPROPRIATE SOURCE FOR PAYMENT OF JUDGMENTS AND SETTLEMENTS IN UNITED STATES v. WINSTAR CORP. AND RELATED CASES. Retrieved April 6, 2010, from Justice.gov: http://www.justice.gov/olc/winstarfinal.htm

Trescott, P. B. (1992). The Failure of the Bank of United States, 1930. Journal of Money, Credit, and Banking, Vol. 24, No. 3 (August 1992) , 384-399.

Walter, J. R. (2005). Depression-Era Bank Failures: The Great Contagion or the Great Shakeout? Federal Reserve Bank of Richmond Economic Quarterly Volume 91/1 Winter 2005 , pp. 39-54.

By: Joseph Dustin


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A Baseline for Ethical Reporting Models

Organizations looking to implement a way to report unethical conduct can choose from a wide range of Ethical Reporting Models. Reasons for the variety of models can be argued that organizations, in general, do not share the same functional business models. Some of the organizational issues that can affect the Ethical Reporting Model an organization will choose are (a) the differences in operating funds, (b) the number of employees/stakeholders, (c) different laws the organization is governed by, and (d) the initiative to want change. Ultimately, organizations are left to choose a model that works well for them. So, what does an organization look for when choosing a model? To answer this question, I will analyze several different ethical reporting models to find commonalities that establish the necessary baseline of any model an organization may choose.

Ethical Reporting Models Analyzed

The first ERM analyzed is being used by the Global Fund to Fight AIDS, Tuberculosis and Malaria. The Global Fund appointed Willem A. Landman as the Independent Ethics Advisor to help give advice to the Ethics Committee on a wide range of ethical issues. The Global Fund’s Ethics Committee requested Landman to lend his expertise on implementing a whistling-blowing program to help complement the ethics and conflict of interest policies (The Global Fund, 2005).The Global Fund’s ERM is based off the guidebook, First to know: Robust internal reporting programs, published in 2004 by Trace International Inc, in collaboration with ISIS Asset Management and the Prince of Wales International business Leaders Forum. In 2005, Landman, as CEO of Ethics Institute of South Africa, obtained copyrights to produce its own edition of the guidebook, with due recognition (Landman, 2005). The Global Fund’s ERM is described as a, “legal and ethical misconduct prevention and detection strategy,” by Landman and addresses the five components of the U.S. Federal Sentencing guidelines for Organizations’ best practices, the UK’s Public Interest Disclosure Act, the U.S. Sarbanes-Oxley Act, and South Africa’s Protected Disclosures Act (Landman, 2005). This robust Ethical Reporting Model contains eleven key best practices.

The next ERM is published by Grant Thornton LLP, one of the six global audit, tax and advisory organizations, as part of their Corporate Governor Series. Grant Thornton developed a process called the Model Accounting Complaint-Handling Process (MACH Process). The MACH Process was created to be meaningful and flexible for any organization to use (Grant Thornton LLP, 2009). The MACH Process expresses the need to understand all stakeholders and their needs within the organization. The MACH Process is a customizable six step process that breaks down the processes for creating complaint handling procedures. This model also expresses a need for the MACH Process to be monitored using metrics to measure performance.

The third ERM analyzed was published by Foley & Lardner, LLP (F&L), a national law firm that provides a full range of corporate legal services. The guidebook published by F&L is titled, Implementing an Effective Corporate Compliance and Whistle-Blower Program. The F&L program starts with the organization’s Code of Ethics as the base of for the ERM. Then the program highlights four key elements for effective implementation. These key elements are education, fostering communications, evaluating compliance, and enforcement. The F&L program also ensures confidentiality and details the role of the company boards (Brown, Wilson, & Svendson, 2004).

The last ERM analyzed was introduced by Dr. Muel Kaptein, a senior Consultant at KPMG Ethics & Integrity Consulting, in the Journal of Business Ethics titled, Guidelines for the Development of an Ethics Safety Net. There are three Ethical Reporting Models described by Dr. Kaptein, of them, the Ethical Helpdesk Model was analyzed. The Kaptein Model revolves around the use of a centralized Ethical Helpdesk that is responsible for receiving all types of violations, adding violations into the organization’s reporting system, referring violations to the appropriate officers, and then following-up on violations to ensure all procedures are carried out properly. The Kaptein Model also uses steps for determining an Ethical Code of Conduct using a set of key principles and critical factors (Kaptein, 2002).

Commonalities of the Ethical Reporting Models

Upon reviewing each Ethical Reporting Model, a recurring theme started to appear. This recurring theme has eight distinct commonalities that can be broken down into two separate functionality groups (see Table I for details). The first functionality group consists of “Tone at the Top,” Code of Conduct, Reporter Protection, and Routing & Screening. This group determines the scope of the ERM by allowing an organization the ability to be as aggressive and flexible as they need. To understand this first functionality group better I will provide some examples.

Table I

Group

Commonalities

Global Fund

MACH

F&L

Helpdesk

Tone at the Top

X

X

X

X

Code of Conduct

X

X

X

X

Reporter Protection

X

X

X

X

Routing & Screening

X

X

X

X

Investigation

X

X

X

X

Resolve

X

X

X

X

Monitor & Report

X

X

X

X

Training

X

X

X

X

The involvement of top level management is the first commonality explored in the first group and all four ERMs expressed the need for high level commitment. Willem A. Landman’s Global Fund Model states, “Programs will fail if management does not provide support, both through frequent and high level public statements and through the commitment of staff and resources(Landman, 2005).” The F&L model extends this notion by indicating that the “tone at the top” exhibited by corporate management drives the program and for organizations to be effective they must have an ethics/conduct code (Brown, Wilson, & Svendson, 2004). The organization’s code of conduct allows for flexibility by tailoring the code of conduct to include applicable laws or by going beyond compliance and instilling a higher level of responsibility. Although, reporter protection is another key commonality, not all Ethical Reporting Models agreed in how to provide this protection. The Ethics Helpdesk Model is flexible and allows for the organization to use either anonymous reporting or identification (Kaptein, 2002). The MACH Process, on the other hand, states the need for confidentiality and anonymous submissions that are required by the Sarbanes – Oxley Act (Grant Thornton LLP, 2009). The last commonality within this functionality group is routing and screening. This step can consist of written internal controls and procedures designed to handle violations of the code of conduct. The core of each ERM features processes that identify different ways organizations can address handling violations of the code of conduct. The first functionality group can be considered the roadmap for the second functionality group.

The second functionality group consists of Investigating, Resolving, Monitoring & Reporting, and Training. This group allows the organization to reduce and improve their unethical behavior. The first commonality of the second group is the investigation process. Although, not all ERMs specifically stated the investigation process in detail, those that didn’t, implied that investigation is necessary by applying remedial action to violations of the code of conduct. The MACH Process states, “The investigation should consist of all necessary procedures and actions to provide for the discovery, location and procurement of sufficient facts to reach accurate conclusions (Grant Thornton LLP, 2009).” The next commonality is resolve. If organizations don’t take remedial action of reported violations, it will threaten to stop the flow of information (Landman, 2005). Information gathered throughout the ERM process will need to be logged, thus allowing the ability to monitor and report against it. The Foley Model expresses that monitoring and reporting has taken on greater urgency under SOX 404 and this urgency requires management to attest to the effectiveness of the internal controls (Brown, Wilson, & Svendson, 2004). The last commonality in this functionality group is training. Training can be seen as training employees how to report and what to look for, training management how to handle violations, and training on how to improve the overall ERM system.

Summary

Organization looking to implement a way to report unethical conduct or implementing a whistle-blowing program to deter fraud can choose from a wide range of Ethical Reporting Models. I would encourage any organization in this situation to choose a model that, at a minimum, incorporates the two functionality groups. The two functionality groups work with each other to form a flexible ERM that can be used as a baseline when choosing an Ethics Reporting Model.


References

Brown, S. A., Wilson, D. O., & Svendson, D. M. (2004, May 19). Implementing an Effective Corporate Compliance and Whistle-Blower Program. Retrieved May 17, 2010, from Foley.com:http://www.foley.com/files/tbl_s31Publications/FileUpload137/2240/Whistleblower.pdf

Grant Thornton LLP. (2009). Establishing an effective whistleblower complaint-handling process. Retrieved May 17, 2010, from GT.com:http://www.gt.com/staticfiles//GTCom/files/services/Forensic%20accounting%20and%20investigative%20services/Establishing%20an%20effective%20whistleblower%20complaint-handing%20process.pdf

Kaptein, M. (2002). Guidelines for the Development of an Ethics Safety Net . Journal of Business Ethics , 217-234.

Landman, W. A. (2005, October 23). Whistle-blowing program best practice - some policy considerations for the Global Fund. Retrieved May 17, 2010, from TheGlobalFund.org:http://www.theglobalfund.org/documents/board/12/GFB-12-13-EC_Report_Whistleblowing.pdf

The Global Fund. (2005, September 28-30). Eleventh ANNUAL REPORT OF THE ETHICS COMMITTEE. Retrieved May 17, 2010, from TheGlobalFund.org:http://www.theglobalfund.org/documents/board/11/gfb1111.pdf

By: Joseph Dustin

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The Administrative Procedures Act

The Administrative Procedures Act (APA) was initially conceptualized as an oversight tool designed to help increase accountability and to bring order to a rapidly expanding government in the period after the Great Depression. (Nylander, 2006) To address the issues, which developed during the Great Depression, President Roosevelt expanded the federal government regulatory with his creation of the New Deal. This wave of expansion, in the federal government, pitted proponents of government expansion against those who feared that vesting administrative agencies with regulatory and adjudicatory functions amounted to the establishment of a fourth branch of government without formal accountability to the public.

On June 11, 1946, the APA was approved to ensure the administrative agency’s rule making process was standardized across all administrative agencies. Then, on June 4, 1966, President Lyndon Johnson amended the APA by signing into law the Freedom of Information Act (FOIA). The FOIA helped to expand public access by allowing citizens access to government records; it also places the burden on the government to document why information may not be released. (Nylander, 2006) The Federal Privacy Act of 1974 limits release of certain information about individuals. The Government in the Sunshine Act, passed in 1976, is based on the policy that “the public is entitled to the fullest practicable information regarding the decision making processes of the Federal Government.” (Berg, Klitzman, & Edles, 2005) The Government in the Sunshine Act amended the APA by creating section 552(b) titled “Open Meetings.” Today, administrative agencies actually create more rules than Congress and the courts combines. (Kubasek & Silverman, 2000)

Steps in Formal Rulemaking

Administrative agencies develop rules, which specific industries, must comply with. Part of the APA was created to ensure consistency across all agencies during the rulemaking process. The Administrative Procedures Act’s section 553 sets out the informal rulemaking for administrative agencies. Within section 553, subsection 553(c) states:

When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

That sentence establishes the distinction between informal, notice-and-comment rulemaking under section 553 and formal, “on-the-record” rulemaking under sections 556 and 557. (Lubbers, 2006) Of the two types of rulemaking, informal rule making is most often used and formal rulemaking has always been the exception rather than the norm. Formal rulemaking is used for ratemaking, food additives, and other limited categories. (Eisner, 2003) Jeffrey S. Libbers states, in his book Federal Agency Rulemaking, which “some people believe that informal rule making is unfair because parties who are interested in the proposed rule have no idea what types of evidence the agency has received from other sources with respect to that rule. Thus, if the agency is relying on what one party might perceive as flawed or biased data, that party has no way to challenge those data. A second type of rule making, formal rule making, avoids that problem.” (Lubbers, 2006)

The first step in formal rulemaking is publication of a notice of a proposed rule making by the agency in the Federal Register. Once the rule has been published a date will be given as to when the hearing will take place. The public hearing will grant witnesses the ability to give their testimony on the pros and cons of the proposed rules and are subjective to cross examination. Next, an office transcript of the hearing is kept and the agency must make and publish all formal findings; if regulation is adopted, the final rule is published in the Federal Register. (Kubasek & Silverman, 2000)

Summary

Administration agencies have their place in our society today. Congress is not prepared to make an in-depth analysis that is required to create some of the highly sophisticated issues arising within many industries. Administration agencies are not elected officials like members of congress, thus in theory, the agencies would have more education in the area of which they serve. I believe that the Administration agencies play a vital role in lawmaking and should continue to operate to better serve our government as a whole. I believe that the Administration agencies are not perfect and could use a little reform. Informal rulemaking has taken over, as the norm; I believe this is not just a way for the agency to save time and money as it is a way for the agencies to be less transparent. I see Informal rulemaking as being a more secretive method as it does not allow for other to cross-examine what is being considered by each agency as it would be in formal rulemaking. However, with that said, I believe the APA and the Administrative agencies still have a place in government today.


References

Berg, R. K., Klitzman, S. H., & Edles, G. J. (2005). An Interpretive Guide to the Government in the Sunshine Act second edition. Chicago: ABA Publishing.

Eisner. (2003, January). E-Rulemaking. Retrieved April 14, 2010, from Harvard.edu: http://www.hks.harvard.edu/m-rcbg/Conferences/rpp_rulemaking/Eisner_Presentation.pdf

Kubasek, N. K., & Silverman, G. S. (2000). Environmental Law. Prentice Hall.

Lubbers, J. S. (2006). A Guide to Federal Agency Rulemaking. Chicago: ABA Publishing.

Nylander, J. (2006). The Administrative Procedure Act. Michigan Bar Journal , 38-41.

By: Joseph Dustin

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The Cyber Security Act of 2009 Revisited

As the Cyber Security Act of 2009 moves closer to becoming law, I would like to take a closer look into what we can expect in our not so distant future.


Rep. Lanevin addresses Congress in regards to The Cybersecurity Enhancement Act of 2009.




It looks like the main topics of focus may be on the President’s ability to shutdown the internet.




Greg Nojeim of the Center for Democracy and Technology discusses this issue. He give DoS attacks on critical Infrastructure as cause for the bill.


President Obama addresses the nation on Cybersecurity. The President announces his plans for securing America's digital future. May 29, 2009. (Public Domain) This address takes place before the Cybersecurity Act of 2009 was introduced. It will be interesting to see how President Obama will handle this piece of legislation.



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Difference Between Laws and Regulations

Distinguishing the differences between Laws and Regulations can be somewhat confusing at times. With new laws being passed in Congress and new regulations targeting various industries within the United States are making it harder to keep track of each law and regulation individuals and business must comply with. To make matters even more confusing, law and regulations can come from Federal, State, or Local governments.

Laws and regulations interact with each other and can help expedite the legislative process. Legislators are best suited to write laws that allow administrative agencies to regulate and enforce each new law; administrative agencies have the ability to assimilate research that will be needed to set fourth affective guidelines on how to comply with the law. This will allows for a more in-depth law making process.

According to the University of Delaware Library’s Reference Website, There are three types of law which prevail at the federal, state, and local levels of government in the United States. They are:

1. Statutory Law - Statutory law consists of the acts of legislatures.

Statutes are the laws passed by the Congress or state legislature. A statute, also called an act, legislation, or, confusingly, a law, is often a broad statement of principle that is interpreted and applied by case law or implemented through administrative regulations. (Hilton C. Buley Library)

2. Case (Judicial Law) – Case law is the law of reported judicial opinions. “Stare Decisis” (or precedent) is the basic concept of case law (common law) in which courts look to statutes and regulations and prior court decisions to formulate opinions.

3. Regulations (or Administrative Law) – Regulatory agencies create regulations according to rules and processes defined by another law know as the Administration Procedure Act (APA). (2010, Longley)

  • Regulations are written by executive agencies
  • Establish rules and procedures to administer the statutory law passed by Congress and signed by the President
  • Published in the Federal Register
  • Published in the Code of Federal Regulations after being catagorized

Regulations can be thought of as industry specific laws that apply to certain groups. The key here is knowing which Regulatory Agencies apply to your corporation and learn to become confortable with each of them. Compliance officers are a great way to keep your corporation or business in compliance as they are generally well versed in dealing with compliance issues. If questions occur, it can be benificial to seek advise from a Lawyer versed in compliance law.

By: Joseph Dustin

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