By Stephen J. Lubben (Seton Hall University School of Law)
Since the disgrace of Lehman, the question of how to handle failing SIFIs has been quite vexed. On the one hand, governmental rescue of shareholders and other investors is beyond annoying, and there is some intuitive sense that if management does a poor job, they and their investor backers should face the consequences, just like any other firm. That bank managers would have the temerity to pay themselves large bonuses shortly after a taxpayer rescue only emphasizes the point.
On the other hand, there is a widespread understanding that a large bank, or a sufficiently interconnected one, is not quite like Kmart, Enron, or even American Airlines, in that when the bank fails, it tends to take a large chunk of the economy along with it. Pre-failure regulation can mitigate some of the effects, but by the time we get to insolvency—or “financial distress”—the regulatory string has pretty much played out. And in the end, we have trouble deciding if we really mean to treat large financial institutions like normal failed firms.
In A Functional Analysis of SIFI Insolvency, I argue that we need to consider what it is that we are trying to achieve in a bank insolvency case, and how that compares with bankruptcy law in general. Bank insolvency, I submit, is all about special priorities: both ordinal and temporal. The Bankruptcy Code, on the other hand, takes an “equality is equity” approach to priorities as a baseline, mostly using state law to draw the claim-asset border.
Financial insolvency law expressly rejects this model; it instead is all about protecting some favored group from the effects of insolvency. There is no equality here, and it was never intended that there would be equality. And thus it is time to stop pretending SIFI insolvency is “normal” corporate insolvency but bigger.
The full article is available here.