- Countercyclical Regulation and Its Challenges, by Patricia A. McCoy, Boston College Law School Legal Research Paper No. 351.
- Low-Income Housing Tax Credit Developments and Neighborhood Property Conditions, Kelly D. Edmiston, February 20, 2015.
- First Principles for Regulating the Sharing Economy, by Stephen R. Miller, February 20, 2015 (focusing on the short-term rental market, for instance, Airbnb).
- The Future of Foreclosure Law in the Wake of the Great Housing Crisis of 2007-2014, by Judith L. Fox, Washburn Law Journal, 2015, Forthcoming.
- Regional Redistribution Through the U.S. Mortgage Market, by Erik Hurst, Benjamin J. Keys, Amit Seru, & Joseph Vavra, February 25, 2015.
Pat McCoy has posted Countercyclical Regulation and Its Challenges to SSRN. The abstract reads,
Following the 2008 financial crisis, countercyclical regulation emerged as one of the most promising breakthroughs in years to halting destructive cycles of booms and busts. This new approach to systemic risk posits that financial regulation should clamp down during economic expansions and ease during economic slumps in order to make financial firms more resilient and to prick asset bubbles before they burst. If countercyclical regulation is to succeed, however, then policymakers must confront the institutional and legal challenges to that success. This Article examines five major challenges to robust countercyclical regulation – data gaps, early response systems, regulatory inertia, industry capture, and arbitrage – and discusses a variety of techniques to defuse those challenges.
Readers of this blog will be particularly interested in the section titled “Sectoral Regulatory Tools.” (34 et seq.) This section gives an overview of countercyclical tools that can be employed in the housing finance sector: loan-to value limits; debt-to-income limits; and ability-to-repay rules. McCoy ends this section by noting,
The importance of the ability-to-repay rule and the CFPB’s exclusive role in promulgating that rule has another, very different ramification. It is a mistake to ignore the role of market conduct supervisors such as the CFPB in countercyclical regulation. The centrality of consumer financial protection in ensuring sensible loan underwriting standards – particularly for home mortgages – underscores the vital role that market conduct regulators such as the CFPB will play in the federal government’s efforts to prevent future, catastrophic real estate bubbles. (44)
While this seems like an obvious point to me — sensible consumer protection acts as a brake on financial speculation — many, many academics who study financial regulation disagree. If this article gets some of those academics to reconsider their position, it will make a real contribution to the post-crisis financial literature.