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Remarks Before the Quadrilateral Meeting of the FMLC/FMLG/FLB/EFMLG

Commissioner Michael S. Piwowar

London, England

July 20, 2016

Thank you, Michael [Nelson], for that kind introduction and for inviting me to speak at this auspicious meeting.[1]  And, thank you, Lord Walker, for your warm welcome this morning.  I am pleased to have this opportunity to speak with all of you.  The issues discussed here today and tomorrow cover a lot of ground and I am particularly pleased that one of the topics this morning was FinTech.  I am currently pushing for the U.S. Securities and Exchange Commission (“Commission” or “SEC”) to hold a FinTech roundtable this fall and I personally learned a lot from today’s discussion of blockchain technology and virtual currencies.

The Quadrilateral Meeting is a perfect forum to discuss an issue that I have previously spoken about and one which I believe needs to be addressed sooner rather than later.  As many of you are aware, there is often jurisdictional tension between prudential (or banking) regulators and markets regulators.  As a capital markets regulator, I recognize that prudential regulators have the requisite experience and expertise regarding the best methods to ensure that banks operate in a safe and sound manner and to protect bank depositors.  Similarly, I would hope that prudential regulators recognize that it is the capital markets regulators that have the requisite experience and expertise regarding the best methods to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation. 

Consistent with each regulator’s spheres of expertise, today, I want to delve further into my opposition to calls by some prudential regulators for so-called “prudential market regulation” of capital markets actors and my suggestion that the SEC and prudential regulators work together on an alternative to apply what I call “market-based prudential regulation” to banks.[2] 

“Prudential Market Regulation”

In the wake of the 2008 global financial crisis, some prudential regulators have sought to expand their regulatory oversight to include capital markets actors or, as some refer to them, so‑called “shadow banks.”  Early post-crisis attempts at extending banking regulations to non‑banks were the Financial Stability Oversight Council’s (“FSOC’s”) and the Financial Stability Board’s (“FSB’s”) calls to designate certain non-bank financial institutions as systemically important financial institutions (“SIFIs”) or global systemically important financial institutions (“G‑SIFIs”), respectively.  SIFI or G-SIFI designation subjects a non-bank financial institution to prudential regulatory supervision and oversight.

More recently, some prudential regulators have stated that there is a “need to broaden the perimeter of prudential regulation, both to certain nonbank financial institutions and to certain activities by all financial actors”[3] and that “any firm whose failure could pose systemic risk is subject to prudential regulation, quite apart from its relationship with [insured depository institutions].”[4]  These regulators made it clear that they were focused not only on large banking organizations with extensive operations but also “other large and complex financial firms.”[5]  At the top of these regulators’ long list of “shadow banking activities” requiring so-called “macroprudential” regulation are asset management activities.[6]

The goal of so-called “macroprudential” regulation of the capital markets is to develop “a policy framework that builds on traditional investor protection and market functioning aims of securities regulation by incorporating a system-wide perspective.”[7]  In other words, some banking regulators purport to know what is in the best interests of the financial system as a whole, and therefore think they should have the right to discard decisions made by individual participants in the capital markets.

Capital Markets Actors Are Not “Shadow Banks”

Capital markets and capital markets actors are not engaged in so-called “shadow banking” and, therefore, it is not appropriate to subject them to bank safety and soundness regulations.  Capital markets channel savings from individual investors to investments in the real economy, providing a significant source of financing for the corporate sector.  These investments have always been about risk and investors in the capital markets operate with the knowledge that the capital they invest is subject to risks and, unlike bank deposits, it is not guaranteed.  Investors knowingly make this tradeoff between the risk of loss of principal and the hope of earning a higher return on their investment.  It is this risk taking that has enabled capital markets to be a key driver of economic growth.

“Prudential Market Regulation” of Capital Markets Will Not Work

One of the unintended consequences of trying to mitigate bank risks on a macro level is that it is now more likely that there will be another financial crisis and that it will be more widespread than the 2008 crisis.  As a result of the wave of new banking regulations and updates to the Basel capital standards, many large banks have similar investment and loan portfolios, and they fund their operations with similar equity capital levels.  In other words, large-bank balance sheets are now highly correlated.  Therefore, during the next period of market stress there is a greater likelihood of contagion and, as more banks come under duress at the same time, there is the potential for the entire banking system to implode.  This is one of my greatest fears and one of the primary reasons for my suggested application of what I call “market‑based prudential regulation” to banking institutions.

If we were to apply “macroprudential” regulation to capital markets and, in particular to the asset management industry, as many prudential regulators are calling for, the results could be catastrophic.  Trying to mitigate risks related to the asset management industry on a macro level likely would result in a narrowing of the differences in the way assets are managed, which could result in all financial firms having similar investments.  If all firms are invested in the same types of assets, then during a period of market stress asset management firms are more likely to collapse.  Add this to the risk posed by already highly correlated bank balance sheets and you have a recipe for the collapse of the entire financial system. Introducing “prudential market regulation” also raises questions as to whether asset managers could comply with their current regulatory requirements.  “Prudential market regulation” could force, for example, asset managers to face the impossible task of balancing their fiduciary duties to their clients and investors with regulatory obligations to do what is best for the financial system as a whole.[8]

Even if we were to assume, arguendo, that “prudential market regulation” would not increase the likelihood of a system-wide collapse and that it would not conflict with the current capital markets regulatory framework, “prudential market regulation” still would not accomplish its aim of reducing risk to the financial system because there is no evidence that asset managers, investment management funds, and insurance companies pose any threat to the stability of the financial system. 

Money market funds are frequently touted as an example of the systemic risk posed by the asset management industry.  Prudential regulators often point to the “breaking of the buck” by the Reserve Primary Fund (“Reserve Fund”) during the 2008 financial crisis as proof of money market funds’ systemic risk.  But upon closer examination, the facts do not in any way indicate that money market funds, even during a financial crisis, pose a threat to the stability of the financial system.  The Reserve Fund was the only money market fund to break the buck during the crisis even though investors pulled around $300 billion (about 14% of assets) from prime money market funds during the week the Reserve Fund broke the buck.[9]  As a result of the heavy redemptions, money market funds did retain cash rather than reinvest in commercial paper, which resulted in a lack of availability of short-term credit for businesses and financial institutions.  An overreliance on short-term funding by highly levered banks made them vulnerable to large losses in mortgage-related assets.[10]  Thus, a liquidity crisis in the money markets became a solvency crisis for banks because of their overreliance on short-term funding.  If the banking regulators are concerned that banks’ overreliance on short‑term funding poses systemic risk, then they have the authority to address this bank regulatory shortcoming directly.  Nothing in the Dodd-Frank Act took away any of this authority.  Additionally, the SEC has enacted extensive money market fund reforms since the crisis to increase fund liquidity, enhance fund resiliency, and enhance the funds’ ability to manage and mitigate potential contagion.  

Similarly, the claims that insurance companies need to be subject to “prudential market regulation” also stem from the activities of banks, which banking regulators have the authority to address directly.  The belief that insurance companies can be systemically risky derives from the massive U.S. government bailout of the creditors of the insurance giant American International Group, Inc. (“AIG”).  However, AIG’s failure was mainly the result of its credit default swaps portfolio and its securities lending program; not its insurance business.  Much of the government bailout was provided for the benefit of AIG’s credit default swap and securities lending counterparties, which were primarily banking organizations.[11]  

“Market-Based Prudential Regulation”

As I have previously said, there is a better approach.  Rather than imposing prudential regulation on markets, requiring banks to comply with the disclosure-oriented focus of market-based regulation would provide better protection to the financial system.  In other words, instead of “prudential market regulation,” the financial system would be safer with “market-based prudential regulation.”

I fully recognize that a disclosure-oriented regulatory focus may be completely different from how bank regulators and bank lawyers are used to thinking about the world.  So, I am going to take advantage of the fact that I am in London and preface the remainder of my remarks with the famous catchphrase of the British comedy group Monty Python – “And now for something completely different.”

While banks are usually thought of as depository institutions, in which they fund their operations with insured deposits, banks also fund their operations by accessing the capital markets.  Bank holding companies can publicly offer securities, and have investors and creditors just like any other public company.  Banks that offer securities to U.S. investors are subject to the Commission’s jurisdiction.

One of the most important lessons from the financial crisis is that bank investments are not adequately disclosed.  There is limited public information about how banks are investing their assets, so investors have difficulty making informed investment decisions, and creditors cannot assess the true creditworthiness of banks. 

Yet, after the plethora of new and costly banking regulations that have been enacted since the 2008 financial crisis, we still have not done anything to remedy this lack of public information and thereby bring market discipline to the banking sector.  As a result, public mistrust of banks remains high and even many sophisticated investors will not invest in banks.  Many investors have come to view large banks as complete “black boxes” that may still be concealing enormous risks that could take down the economy.[12] 

Loan Portfolio Disclosure

In order to allow for market discipline, investors need information that allows them to reliably gauge the value of the bank’s assets and the risks of investing in the bank.  I would like to discuss five areas that are ripe for improved disclosure.  I have previously identified four such possible areas of disclosure:  bank investment portfolios; the impact from the comprehensive capital analysis and review (“CCAR”) process; the resolution plans, or living wills, imposed by recent banking regulations; and material regulatory costs.  Today, I would also like to add a fifth: better information about bank loan portfolios.

Currently, SEC-registrant banks disclose information on their loan portfolios in their financial statements filed with the Commission.  However, as even two former members of the Financial Accounting Standards Board (“FASB”) acknowledge, the information provided on the value of bank loan portfolios is not reliable.[13]  One is quoted in an article as saying that “[a]fter serving on the board, I no longer trust bank accounting.”[14]  Banks today do not fair value their loans by recording them at current market values, but instead record the value of their loans at the initial loan amount, and set aside a reserve based on their assumptions about how likely they are to get paid back.  In order for investors to have an accurate picture of the bank’s value, they need to know the current market value of the bank’s loans.  Fair valuing a bank’s loans also would alert the Commission and Commission staff to potential problems with a bank’s loan portfolio.

Investment Portfolio Disclosure

I have previously stated that it is worthwhile to think of banks as being similar to investment companies in that their assets are invested in a myriad of products.  Investment companies (mutual funds, exchange-traded funds (ETFs), and closed-end funds) are subject to the Commission’s disclosure regime, which requires extensive information about an investment company’s portfolio holdings.  Using a “market-based prudential regulation” approach, such as applying the Commission’s investment company portfolio holdings disclosure regime to banks, would facilitate investors and creditors making informed investment decisions, as well as Commission oversight and monitoring of banks.

Registered investment companies have long filed a schedule of their portfolio investments as part of their financial statements required by Regulation S-X,[15] and for the last decade the Commission has required the filings to be made on a quarterly basis.[16]  These disclosures are made on our Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system and are immediately available to the public.  Among other information about each holding, mutual funds must identify the name of the issuer, the title of the security, the number of shares or principal amount of debt instruments held at the close of the period, and the value at the close of the period.[17]

Since the 2008 financial crisis, the Commission has undertaken a reassessment of what information investment companies should disclose about their portfolio holdings.  In 2010, the Commission adopted Form N-MFP, which greatly increased the information available to the Commission and investors about the portfolio holdings of money market funds.  In addition to the information that is required by Regulation S-X, money market funds must provide for each investment, among other things, the category of investment, the maturity date, whether the instrument has certain enhancement features, the current amortized cost value, the percentage of the fund’s assets invested in the security, whether the security is illiquid, and the market-based value of each security.[18]  Money market funds file N-MFP monthly with the Commission in an XML tagged data format, which allows for analysis of the data, and each month’s information is publicly disclosed.[19]

The Commission is continuously evaluating its investment company and investment adviser disclosure requirements to determine, based on changes in the asset management industry, what information about a fund’s portfolio holdings and assets managed by investment advisers should be disclosed.  Last year, the Commission proposed a comprehensive set of amendments to our data reporting requirements for both investment companies and investment advisers because we realized that our reporting obligations have not kept pace with the development of new products and strategies in the asset management industry, particularly with the increased use of derivatives and securities lending.[20] 

The proposed changes on the investment company side include, among other things, the introduction of two new forms (as well as the rescission of two existing forms) and amendments to Regulation S-X.  The amendments would require additional disclosures including the contractual terms for debt securities and derivatives held by a fund and information describing a fund’s securities lending activities and repurchase and reverse repurchase agreements.  Also, funds would be required to disclose risk sensitivity measures at the portfolio level and, in some instances, at the position level.  The new forms, unlike the two forms they would replace, would be required to be filed in an XML structured format, so the data could be readily analyzed by investors, advisers, analysts, academics, regulators, and other professionals.  Finally, while investors would continue to receive portfolio holdings information on a quarterly basis, the information would be provided to the Commission monthly.

With respect to investment advisers, the proposed amendments to Form ADV would provide for, among other things, more specific information about advisers’ separately managed accounts, including the percentage of separately managed account assets invested in ten broad asset categories, the identity of custodians that account for at least 10% of separately managed account assets under management, and, for certain advisers, information on the use of borrowings and derivatives in the separately managed accounts.

CCAR, Living Will, and Regulatory Cost Disclosures – Industry Guide 3

Bank holding companies registered with the Commission that are subject to the SEC’s disclosure regime provide certain information in filings with the Commission, but that information is much more limited than for investment companies.  (I will resist the temptation to refer to banks as “shadow investment companies.”)  In any event, it is clear that the information provided does not reflect today’s markets.  The policies and practices of the SEC’s Division of Corporation Finance in administering the disclosure requirements of the federal securities laws to bank holding companies are expressed in what is known as “Industry Guide 3.”[21]  Although the Industry Guides, such as number 3, are neither rules nor regulations of the Commission, they assist issuers, their counsel, and others in preparing disclosure documents.[22]  Despite potentially being the source of very valuable information about banks, Industry Guide 3 has not been updated in almost three decades. 

When the Commission first authorized for publication an industry guide for bank holding companies in 1975, we noted that our staff had long sought to encourage issuers to provide full disclosure of factors that have a material effect upon earnings.[23]  We further observed that as banks had grown in size and complexity, “it has become increasingly difficult for the investor to identify the sources of income of the bank.”[24]  In authorizing Industry Guide 3, the Commission stated that, due to the wide range of risk characteristics associated with various sources of income, investors may have difficulty “assessing the future earnings potential of a bank holding company without detailed information concerning the company’s sources of income and exposure to risk.”[25] 

During the first decade of Industry Guide 3’s existence, the Commission revisited the guidance multiple times.  Indeed, upon initial adoption, the Commission undertook an obligation to perform a retrospective review of the new guidance, which it did three years later and resulted in changes in 1980 intended to eliminate unnecessary elements and improve the quality of disclosure.[26]  In 1983, Industry Guide 3 again was revised, this time with respect to disclosures about nonperforming loans and various risk elements involved in lending activities.[27]

Several years later, in 1986, Industry Guide 3 was further modified in response to concerns about outstanding borrowings to certain foreign countries that were experiencing liquidity problems.[28]  So, if you were counting along, that is three updates to Industry Guide 3 in the first eleven years it existed.  In the last thirty years, however, there have been no more substantive amendments, despite the fact that the scope and nature of banking has changed dramatically in that time. 

More than two and a half years ago, SEC staff recommended reviewing the Industry Guides to evaluate whether they still elicit useful information and conform to industry practice and trends.  The staff reported that this review could include an evaluation of the guidance set forth in Industry Guide 3 in light of the growth and complexity of financial institutions and developments in international regulatory reforms.[29]  I wholeheartedly endorsed such a review, and am hopeful that staff in the Division of Corporation Finance will shortly make a recommendation to the Commission concerning Industry Guide 3. 

I would like to open up Industry Guide 3 for public comment so that we can elicit a wide range of perspectives and take a broader view than the current formal title of Industry Guide 3, which is “Statistical Disclosure by Bank Holding Companies.”  I support dropping the narrow scope of statistical disclosure and including additional quantitative and qualitative information.  Investors need more transparency about the material effects of prudential regulation, such as the impact on the issuer from the comprehensive capital analysis and review, or CCAR, process and the resolution plans, or living wills, imposed by the Federal Reserve, as they directly affect a bank’s capital structure, dividend policy, and treatment in bankruptcy. 

I am not the only one to call for improved bank disclosure.  In 2014, FDIC Vice Chairman Thomas M. Hoenig argued that “a greater part of these [living will] plans should be made available to the market, providing it an opportunity to judge whether progress is being made toward having credible plans.”[30]  Similarly, a prominent securities regulation expert has stated that “[l]etting markets judge the credibility of living wills would not only harness the market’s broad expertise, but also would send a message that regulators are serious about allowing firms to fail without government support.  Speak now, bank creditors and shareholders, or forever hold your peace.”[31]  In addition, it has been noted that while the banking regulators have publicly issued a general rule for the living-will process, they did not include the standards for determining the credibility of a living will.[32]  This has led to the market being unable to adequately assess whether the biggest banking institutions can go through bankruptcy, and a call for a formal rulemaking by the banking regulators setting out the standards.[33]  Disclosure of these additional pieces of information about living wills should allow the market to properly assess a bank’s prospects in bankruptcy.

Moreover, investors should know the significant costs of prudential regulation – not only in terms of direct expenses, but opportunity costs as well – resulting from new regulatory requirements arising out of the Dodd-Frank Act, the Basel Committee on Banking Supervision, CCAR, and living will obligations.  Any revisions to Industry Guide 3 should include, at minimum, a requirement to disclose an estimate of the costs a bank faces from all of the new and complex regulations.[34]

Conclusion

Requiring banks to provide the information I have just discussed to the Commission and investors would likely reduce the fear that many investors and regulators, including me, have about the opaqueness of a bank’s financial health.  The Commission’s disclosure regime has always been based on the disclosure of material information.  As former U.S. Supreme Court Justice Thurgood Marshall wrote for a unanimous Court in the seminal case of TSC Industries, Inc. v. Northway, “[a]n omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important.”[35]  The view of some institutional investors that banks are “black boxes” in which they are not willing to invest, and of some former FASB members that bank loan accounting is not reliable indicates that there is some material information regarding banks that is not being disclosed.  Requiring banks to disclose the information we discussed today could go a long way in aiding the Commission’s and banking regulators’ ability to oversee and monitor banks while providing investors with confidence that the markets are able to reliably judge a bank’s financial health.

Thank you for the opportunity to share my thoughts on issues that matter to all.

 

 

[1] The views I express today are my own and do not necessarily reflect those of the Commission or my fellow Commissioners.

[2] See Commissioner Michael S. Piwowar, Remarks Before the Exchequer Club of Washington, D.C. (May 20, 2015), available at https://www.sec.gov/news/speech/remarks-before-exchequer-club-washington-dc.html.

[3] See Governor Daniel K. Tarullo, Rethinking the Aims of Prudential Regulation (May 8, 2014) (emphasis added), available at http://www.federalreserve.gov/newsevents/speech/tarullo20140508a.htm.  .   

[4] See Governor Daniel K. Tarullo, Corporate Governance and Prudential Regulation (June 9, 2014), available at http://www.federalreserve.gov/newsevents/speech/tarullo20140609a.htm.

[5] See Chair Janet L. Yellen, Improving the Oversight of Large Financial Institutions (Mar. 3, 2015), available at http://www.federalreserve.gov/newsevents/speech/yellen20150303a.htm.

[6] See, e.g., Financial Stability Board, FSB Chair’s Letter to G20 on Financial Reforms – Finishing the Post-Crisis Agenda and Moving Forward (Feb. 4, 2015), available at http://www.fsb.org/wp-content/uploads/FSB-Chair-letter-to-G20-February-2015.pdf.

[7] See Governor Daniel K. Tarullo, Advancing Macroprudential Policy Objectives (Jan. 30, 2015), available at http://www.federalreserve.gov/newsevents/speech/tarullo20150130a.htm.

[8] See Hester Peirce, No, Mr. Tarullo, We’re Not All Macroprudentialists Now (Feb. 25, 2015), available at http://www.realclearmarkets.com/articles/2015/02/25/no_mr_tarullo_were_not_all_macroprudentialists_now_101548.html.

[9] See Investment Company Institute, Report of the Money Market Working Group, at 62 (Mar. 17, 2009), available at http://www.ici.org/pdf/ppr_09_mmwg.pdf (analyzing data from iMoneyNet).  

[10] See, 2009 Economic Report of the President (Jan. 2009), available at http://www.nber.org/erp/2009_erp.pdf

[11] See, e.g., Congressional Oversight Panel, June Oversight Report, The AIG Rescue and its Impact on Markets, and the Government Exit Strategy (June 10, 2010); Louise Story and Gretchen Morgenson, In U.S. Bailout of AIG, Forgiveness for Big Banks, The New York Times (June 29, 2010); William Greider, The AIG Bailout Scandal, The Nation (Aug. 6, 2010); Scott E. Harrington, The Financial Crisis, Systemic Risk, and the Future of Insurance Regulation (Sept. 2009).

[12] See Frank Partnoy and Jesse Eisinger, What’s Inside America’s Banks?, The Atlantic (Jan./Feb. 2013 issue).

[13] See id.

[14] Id.

[15] 17 CFR 210.12-12.

[16] See Shareholder Reports and Quarterly Portfolio Disclosure of Registered Management Investment Companies, Investment Company Act Release No. 26372 (Feb. 27, 2004) [69 FR 11244 (Mar. 9, 2004)].

[17] 17 CFR 210.12-12.

[18] 17 CFR 274.201.

[19] Currently, the data is publicly disclosed 60 days after the end of the month to which the data pertains.  As part of the 2014 money market fund reforms, the Commission eliminated the 60-day delay and, starting April 24, 2016, Form N-MFP filings will become public upon filing.  See Money Market Fund Reform; Amendments to Form PF, Investment Company Act Release No. 31166 (July 23, 2014) [79 FR 47736 (Aug. 14, 2014)].

[20] See Proposed Rule: Investment Company Reporting Modernization, available at https://www.sec.gov/rules/proposed/2015/33-9776.pdf, and Proposed Rule: Amendments to Form ADV and Investment Advisers Act Rules, available at https://www.sec.gov/rules/proposed/2015/ia-4091.pdf.

[21] See 17 CFR 229.801(c); 17 CFR 229.802(c).

[22] See Notification of Technical Amendments To Securities Act Industry Guides, Securities Act Release No. 9337 (July 13, 2012) [77 FR 42175 (July 18, 2012)].  The 2012 amendments made non-substantive changes to Industry Guide 3 to update a cross-reference from Statement of Financial Accounting Standards No. 15 to the FASB Accounting Standards Codification.

[23] See Bank Holding Companies Proposed Guides for Statistical Disclosure, Securities Act Release No. 5622 (Oct. 1, 1975) [40 FR 48526 (Oct. 16, 1975)].  Industry Guide 3 was initially published as Securities Act Guide 61 and Exchange Act Guide 3, and subsequently re-designated as Industry Guide 3 in 1982.

[24] Id.

[25] See Guides for Statistical Disclosure by Bank Holding Companies, Securities Act Release No. 5735 (Aug. 31, 1976) [41 FR 39007 (Sept. 14, 1976)].

[26] See Publication for Comment of Existing Guides for Statistical Disclosure by Bank Holding Companies, Securities Act Release No. 6115 (Aug. 30, 1979) [44 FR 52820 (Sept. 10, 1979)]; Amendments to Guides for Statistical Disclosure by Bank Holding Companies, Securities Act Release No. 6221 (July 8, 1980) [45 FR 47138 (July 14, 1980)].

[27] See Proposed Revision of Industry Guide Disclosures for Bank Holding Companies, Securities Act Release No. 6462 (Apr. 15, 1983) [48 FR 18826 (Apr. 26, 1983)]; Revision of Industry Guide Disclosures for Bank Holding Companies, Securities Act Release No. 6478 (Aug. 11, 1983) [48 FR 37609 (Aug. 19, 1983)].

[28] See Amendments to Industry Guide Disclosures by Bank Holding Companies, Securities Act Release No. 6677 (Nov. 25, 1986) [51 FR 43594 (Dec. 3, 1986)].

[29] Report on Review of Disclosure Requirements in Regulation S-K (Dec. 2013) at 103, available at http://www.sec.gov/news/studies/2013/reg-sk-disclosure-requirements-review.pdf

[30] Statement by Thomas M. Hoenig, Federal Deposit Insurance Corporation, Credibility of the 2013 Living Wills Submitted by First Wave Filers (Aug. 5, 2014), available at https://www.fdic.gov/news/news/speeches/spaug0514a.html.

[31] Hester Peirce, Living Wills for Banks are Pointless Without Market Discipline (Aug. 13, 2014), available at http://www.realclearmarkets.com/articles/2014/08/13/living_wills_for_banks_are_pointless_without_market_discipline_101227.html.

[32] See Hal Scott, Publish the Secret Rules for Banks’ Living Wills, The Wall St. J. (June 9, 2016).  

[33] See id.  The author suggests that a rulemaking setting out the criteria for a credible living will might be required under the Administrative Procedure Act.

[34] Even the banking regulators do not seem to know the true costs or benefits of the blizzard of regulations they have imposed since the financial crisis.  See Greg Ip, Capital Account: Cost Analysis Missing in Bank Rule Debate, The Wall St. J. (May 14, 2015). 

[35] 426 U.S. 438, 449 (1976).