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Judge Rakoff is interviewed by Adam Liptak as an essay by Rakoff appears in the December 22 issue of The New York Review of Books. Judge Rakoff is critical of the Justice Department for not prosecuting individuals responsible in the 2008-2009 financial crisis and merely offering excuses. He discounts the Justice Department argument that proving intent is difficult or that proving fraud is hard because of the sophisticated counterparties on both sides. He says assistant attorney general in the criminal division Bauer's assertion that you have to prove the individual involved made a false statement, intended to commit a crime, and that the other side depended on this for what they were doing, is misleading. The government is not required to prove that one party to a transaction relied on another party. On the difficulty to prove wilful criminal intent for individuals several layers above those who made and marketed the bad securities, Rakoff says the legal doctrine of wilfull blindness could have been used. Reflecting on why the Justice Department has not prosecuted individuals for wrongdoing the way Milken, Keating and Skilling were prosecuted in prior financial crises, Rakoff comes up with a explanation. He says the government's own role and the role of firms throughout the financial system is suspect in the 2008-2009 financial crisis unlike prior crises. Not only regulators are failing to to do their job. The financial system offers incentives for the packaging of bad debt securities. Fannie Mae has government backing and its management buys these securities to expand access to housing for low income people. The profits made on these securities brings U.S. and foreign banks into this business and leads to a proliferation of these securities around the globe to the point that small towns near the North Pole end up with these securities in their portfolio. This complicates things for prosecutors who in some situations have themselves worked for banks selling these securities. In its slow deliberative way the Obama administration, the Justice Department, and the S.E.C.'s new head, move to prosecute firms during the administration's second term, but not enough is done and tackling individual responsibility for deterring future wrongdoing in the interests of a safe and fair financial system seems a long way off....

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Germany's DW.com looks at the influence of money in US elections. The Supreme Court decision in 2010 for Citizens United said First Amendment rights of free speech enshrined in the US Constitution were not based on the identity of the speaker as an individual or other entity. Corporations and unions were allowed the same rights of free speech. No limit was placed on contributions of companies. This has increased the influence of companies and corporate interests in US elections. This undermines public confidence in the election process. In one instance a billionaire said he would contribute $45 million a month to the former president's campaign. In one talk show the former president offered a position in his administration to that billionaire. In another instance a large Silicon Valley contributor offered large contributions to Harris-Walz and yet remained critical of Biden's choice of regulator Lina Khan at the Federal Trade Commission.  This shows the influence of companies in financing after 2010 is becoming more direct and blatant. Yet US has never had the kind of strict laws existing in Europe on election financing and not setup a public financing mechanism as in Europe. Even before Citizens United SC decision tech, pharmaceutical and oil companies lobbied heavily using the existing laws to their advantage to buy influence.    ...

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Chinese banks have 20% of total loans as receivable in 2016, up from 6% at the end of 2011, according to WSJ analysis. Many banks disguise loans as receivables. The government regulators have warned about this, but are hesitant to take strong action so that there is no shock to the system. This has created a parallel buildup of debt next to official debt of over 250% of GDP. These are seen as "hidden credit risks" by Shang Fulin, top banking regulator. As a result about $2 trillion is missing from broad measures of credit reported by the central bank, according to economists at UBS, using shadow lenders to mask loans as investments.

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Pusing aggressive bank lending with a steep rise in bank lending of 34% in 2009 can lead to an asset price bubble in China. Factors the Economist cites mitigating this are the follwing: only about 25% of middle class Chinese have mortgages and loan to value is less than 50%. Also Chinese regulators are more alert to the dangers than were American regulators. At the same time the pegging of theyuan to the dollar means the instrument of raising rates to cool the bubble is not existent. And the US is likely to keep rates low for alonger period which may be adverse for China and prop up a bubble there. These dangers mean China had better take firm action in letting the yuan rise now rather than later because heavy inflows from currrency appreciation can only make the bubble worse later on. This will need to be watched carefully as so much of the global economy is dependent on China maintaining growth, Germany in particular. And with the US consumer cutting back China has to manage this carefully....

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Gary Gensler's first year as chairman of the Commodities Futures Trading Commission, the regulatory agency for the U.S. derivatives markets. The writing of rules for the derivatives markets as required by the Dodd-Frank financial reform legislation has slowed down. A former CFTC official, Michael Greenberger, says there is no governance at all in the derivatives markets and it will take five years before all derivatives are fully brought into a new structure. Derivatives played a major role in the 2008 financial crisis.

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President Obama's address at the White House on financial regulatory reform. They cover all aspects of the financial system, and focus on the structural deficiencies that were evident in this crisis from the late night meetings needed to resolve the situations at Lehman, AIG and other financial firms, because no structure existed for an orderly resolution. The decision was made to give the Fed powers - for both the responsibility and the accountability to be clear- to resolve these situations and to set new rules that ensure that risks do not build up in the system. Besides the Fed's new powers, a new oversight council consisting of regulators from all areas is expected to monitor risks and assess areas of weakness. The other critical aspect is the consumer protection agency. Its job will be to ensure openness, fair-dealing and transparency take place for financial products like mortgages, credit cards and other loans. Other areas of weakness in the financial system in which players are able to game the system or thwart the proper functioning of free markets, are addressed one by one. By not scrapping the old system and building from there- instead preferring to correct areas of weakness akin to major remodeling of an old structure like you find in major European cities- Obama says he understands that "markets are not an unalloyed force for good or evil" as zealous free marketers or those who see the ills of capitalism in its raw form would have one believe. So he goes on to say " in many ways our financial system reflects us." The most government can do, or the best it can do -and it becomes a necessary obligation of government for markets to function correctly- is to set the rules of the road correctly, rules of openness, fair-dealing and transparency; the rest is upto us....

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The needs of AI where the energy to power a city the size of Manhattan is needed leaves America short of meeting such supply with renewable solar, wind and natural gas. Nuclear had become dormant as the cost of natural gas and solar produced energy declined. With increasing need for clean energy the Biden administration considered reviving nuclear energy and included funds for this in its legislation.  In the last year Constellation which owns the Three Mile Plant in decommissioning status changed its plans under CEO Dominguez after attending AI meetings realizing that this was an opportunity. Dominguez had research done to match energy projects in the US with the demand including AI data centers to be convinced it made sense to invest, and meetings with Governor Shapiro. It is moving forward with $1.6 billion investment after a deal with Microsoft for energy from Three Mile Nuclear plant, delivery in 2028, at $115 per megawatt hour. It costs $142 per megawatt hour for new nuclear energy construction.  State and federal regulatory approvals are needed, and the risk of underestimating the cost of restoring nuclear at decommissioned plants are high. ...

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The Federal Trade Commission says food companies in the U.S. spent $2.3 billion in 2006 for advertising to children. With the epidemic in childhood obesity in the U.S., this raises serious questions about how product packaging, images and themes affect the eating behaviour of children. New guidelines have now been written at the request of Congress. They were written by the F.T.C., the Food and Drug Administration, the Agriculture Department, and the Centers for Disease Control. The regulatory agencies say they will take comments and consider changes before submitting a report to Congress. The guidelines call for foods advertised to children to include healthy ingredients such as whole grains, fresh fruits and vegetables, or low fat milk. The foods cannot contain unhealthy amounts of sugar, saturated fat, trans fat and salt. The sugar requirement would have cereals contain no more than 8 grams of added sugar per serving. Fruit Loops for example contains 12 grams of sugar per serving. The guidelines apply to both children and teenagers. However these guidelines are voluntary. At this time an industry led effort has not produced results. The Children's Food and Beverage Advertising Initiative, which is operated by the industry, lets each company set its own nutritional criteria. The regulatory agencies see the need for the food industry to follow a uniform set of standards. Without serious action on this issue the U.S. healthcare system will continue to be burdened with high rates of obesity related illnesses in the general population, and out of control costs. And the U.S. will continue to face the urgent problem of a lack of healthy eating habits of children teenagers, and adults....

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William Barr, Attorney general of the US 1991-1993 and again 2019-2020, says serious regulation to breakup the power and chokehold on communications of Big Tech should be the first priority of 2023. He says they have too much power and pose a threefold danger. First they have a chokehold over essential channels of communications and commerce, letting them be the gatekeepers to the digital world. Second they vacuum up a trove of personal information of users that permits manipulating user beliefs and behaviour. Third, they distort the "marketplace of ideas"  and as gatekeepers can pursue their own political and economic agendas. He cautions antitrust litigation is too slow and case by case approach is not the way. And too much time is misspent on proving misconduct, when that is not necessary, as regulatory intervention has been needed whether or not there is misconduct for a fair and good market system to work. He says new dangers are happening and it is time for Congress to stop being all talk and no action even as digital platforms are taking unfair advantage and endangering the fairness of the market system. ...

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One perspective of what Silicon Valley is focused on is shown by Reid Hoffman. It does not mention climate change, not one word on climate change, no words on cost of living action, little is said about factories and jobs for reviving American manufacturing, helping workers and families and redesigning the world's supply chains. It is critical of addressing monopolies and regulatory action by the FTC even where it is needed. It calls for huge investments in AI that would leave little for investments in science, education, healthcare and infrastructure, and says "trust us to do the right thing." It calls for pro-innovation direction when pro-innovation has been the thrust of policy for three decades with the results that we have seen leading to widening gas between the upper and lower classes and shrinking of the middle, a pharma industry out of control in pricing, and negligible investments in education by so called "tech" companies who like Apple have outsourced manufacturing to China. A return to tech and Silicon Valley is not needed as embedding it in the nation's policy making priorities is the Nation's problem. ...

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France's president Sarkozy, said of British demands to protect its financial industry: "To accept a reform of the treaties by all 27 countries, David Cameron asked what we all considered unacceptable: a protocol in the treaty which would exonerate the U.K. on a certain number of regulations on financial services." British demands included one that would have made transfers of power from a national regulator to a E.U. regulator subject to a British veto, and a committment to keeping the European Banking Authority in London. To European leaders who are dealing with the fallout from years of weak regulation and bad loan decisions by banks, Britain's efforts to shield its banking industry was seen negatively. Efforts by Cameron to win exemptions for Britain's financial sector during a time of severe financial crisis is only leading to Britain becoming isolated from the 26 other countries in the European Union.

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Regulation in theE.U. is more difficult than in the US because of the differinginterests of countries, with the U.K. seeing things diffrently from the Germans and the French. Under the new Obama financial regulatory framework white paper the Fed gets increased powers for overisght over the financial system. Under the proposed system for the E.U. that emerged from the Brussels summit, June 19, 2009, the European Central Bank would setup a European Systemic Risk Council headed by the President of the ECB. But its role is only advisory. This Council would "have the power to make recommendations but not to implement policies directly." French President Sarkozy says that it will acquire powers over time through experience and practice.

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Prof. Barry Naughton at the University of California, San Diego, looks at how China has approached tech regulation in a way that has not yet happened in the US and Europe. It says tech regulation expands the role of the government, yet is one that has "a reasonable regulatory rationale," and can be easily supported on an individual basis. It says the US and Europe have recognized the issues that need to be tackled as tech companies were left with no checks or regulation after growing in insidious ways in the last ten years, but have so far failed to act on this knowledge. Some of the goals pursued in China made sense for China it says- technology self-reliance after delinking with the US, data security, de-risking the housing market, getting on a path to carbon neutrality. Other goals such as de-licensing tutoring companies and reregistering as non profit companies-  this was because of president Xi's concern that excessive costs and stress were discouraging Chinese families from having more children as China's population ages rapidly. This means the government plays a bigger role yet Naughton says when it coms to the goal of reducing inequality China has still to come up with ways to use tax policy and other ways to mitigate an extremely unequal distribution of wealth in China. Today this is limited to donations and giving by companies. In the US and Europe social democratic governments from Biden, Scholz and others are taking serious steps and have plans to address these problems of common prosperity with plans to help families and workers. ...

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The Fed and FDIC issue a report on the failure to regulate SVB and Signature bank. It says the failure to regulate stems from the law passed by Congress leaving a gap for regulation of mid sized banks, and the appointment of Randall Quarles to the Fed supervisory position by then president Trump in 2019. The result was a 40% decline in hours spent by supervisory regulators on the SVB bank even as its assets grew rapidly. Overall the supervisory hours for the Federal Reserve system as a whole declined. This led to cultural issues under Mr. Trump where less regulation the better was the prevailing attitude. Fed report in Fedspeak says- "Staff felt a shift in culture and expectations from internal discussions and observed behaviour that changed how regulation was executed." It would take a special effort by the Biden administration to bring the situation under control to keep the nation's banking system healthy and strong to support the investments the economy needs. After the 2009 crisis and the decade lost to the US economy and the American people from losses in unemployment and savings as a result of deregulated banks, another crisis was prevented. This time the Fed, FDIC, General Accountability Office are all clear about the value and role of regulation in a properly functioning economy, instead of the pushback after the 2009 crisis to regulation. Once again president Biden has shown the way.   ...

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Brazilian central banker Fraga offers his views on the debt crises and high unemployment facing the eurozone and the U.S. He says that a system where losers don't pay or have the rules set in a way that they don't pay is both inefficient and extremely unfair. This is something that people don't accept for long. About markets he says they operate well when the regulatory system is working well, with both going together. On business cycles he points out that there is no way to get rid of the business cycle or the downswing and just have the upswing only- this just ends up being a delusion.

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Nocera says the National Labor Relations Board and the Obama Administration's action to prevent Boeing from using a North Carolina non-union assembly plant for the Dreamliner is a clear case of regulatory "overreach. Precisely the kind that is not needed as the U.S. focusses on creating jobs and building manufactuing industry. There is no "retaliation" against the union in this case because Boeing is facing long delays and needs the additional facility to meet orders. The action of the NLRB as a government agency to prevent a company from locating its plants anywhere in the country- when Boeing has added jobs in Washington state as it expands- is incomprehensible.

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This WSJ editorial says the U.S. Federal Reserve's Operation Twist has not resulted in improving growth. The Fed has lowered its forecasts for growth in June 2012 after its effort in the first part of Operation Twist when it sold $400 billion in short term debt. It says the Fed cannot come with growth using monetary policy, only supply side policies, changes in regulatory policies and the efforts of private enterprise can do this. All it does is have financial markets hang on every word of the Fed chairman Bernanke, as it will for the next two months about the prospects for a QE III.

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What harm will one ton of carbon dioxide pollution cause to the planet? Under Obama administration $50, under Trump administration $5, under Biden administration $200.  Mr. Revesz asks the obvious question others forgot to ask- how does this regulation or change affect future generations, what problems children and grand children won't face because of this action? The man who heads OIRA is given the task of doing the cost benefit analysis for billions of dollars of US government projects designed to fight climate change. Because of its looming importance Mr. Revesz of NY University School of Law was brought right into OIRA in the White House instead of the EPA. The Office of Information and Regulatory Affairs (OIRA) is located right in the White House. It is the gatekeeper and final word on new federal regulations on climate change. Astounding as it may sound, during the Obama and Trump administrations no effort was made to track the cost of climate change for future generations. Mr. Revesz is changing that. As a result of his efforts at NYU School of Law and in assisting attorneys general in the Trump administration, and now at the Whit House he is changing the way the world looks at climate change action. He shows how the EPA new rules on tailpipe emissions will promote electric cars. The benefits exceed $1 trillion from the shift and this will show that it exceeds the cost of the fossil fuel companies and the US economy making the changes required. ...

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China's healthcare costs have increased in the last decade without effective cost control measures. With the decline in consumer spending in the last decade to where it is now only 35% of GDP, and ordinary Chinese setting aside a large portion of savings for costly drugs and healthcare, reducing healthcare costs is a high priority to rebalance the economy and increase consumer spending. By comparison in the U.S. it is 70%. Bussey points out the importance of this for the new leadership of Jinping-Keqiang in China. Xinhua, the Party offical news agency, expressed China's new policy, saying that "some believe China may see a nationwide price cut on medicines." Regulators have begun probes of Nestle and Danone for possible anticompetitive activity and the two companies dropped prices for baby formula.

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Advice from David Walker on the role of a chairman of a large bank and good bank governance. This is part of a 184 page report prepared for UK bank governance practices following the financial crisis. David Walker is now the new chairman of Barclays and considered an excellent choice with the experience and wisdom to correct the problems facing the financial industry. He calls for putting corporate governance at the centre of things in the current environment- this applies to banks in Europe and the U.S.- in the following passage from the report which deserves careful reading: "The need now is to bring corporate governance issues closer to centre stage. Better financial regulation has much to accomplish, but cannot alone satisfactorily assure performance of the major banks at the heart of the free market economy. These entities must also be better governed... The behavioural changes that may be needed are unlikely to be fostered by regulatory fiat, which in any event risks provoking unintended consequences. Behavioural improvement is more likely to be achieved through clearer identification of best practice and more effective but, in most areas, non-statutory routes to implementation so that boards and their major owners feel "ownership" of good corporate governance." Walker calls the role of the chairman paramount in doing this, requiring "exceptional leadership skills and the ability to get confidently and competently to grips with major strategic issues." This means that if done right there will be little time for a chairman to do any other activity....

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A landmark ruling and a huge win for consumers and for the country, as the Supreme Court says states can enforce fair-lending laws and other consumer protection measures against the largest banks in the USA. The Suprem COurt said that the rules issued by the federal banking regulators like the Comptroller of the Currency under the NationalBank Act - a law passed in 1864- could not block sfforts by the states to enforce their laws. For the country its a win because the lack of enforcement of state laws only allowed abuses in the subprime area to continue and helped create the subprime mortgage crisis. The case began with letters by the New York Attorney General Eliot Spitzer in 2005 to several national banks including CItigroup, JP Morgan Chase and Wells Fargo inquiring about lending practices to minorites. The letters referred to "troubling" disparities that suggested black and Hispanic borrowers were being charged disproportionately higher interest rates on mortgages compared to whites. THe letters asked for information "in lieu of subpoena." Protection of minorities and the weak in American society is part of the moral fabric of America and that it had eroded in recent years is evident in the manner the banking sector responded. A banking trade group and the Office of the Comptroller of the Currency brought a lawsuit to block the New York Attorney General's request saying that the National Bank Act nd rules issued by the Bush administration in 2004 gave that type of authority to comptroller and prohibited such efforts by the states. And then afederal district court ruled against the states, aand the U.S. Court of Appeals for the Second Circuit Court affirmed that decision. These are instances where the system failed to protect the weak even with the laws that states had on their books. Justice Scalia voted in favor with a 5-4 vote to allow states to enforce consumer protection laws, even though his written opinion was based on an interpretation of what "visitorial powers" of a federal regulator were, and not about the importance of fair lending in the proper functioning of the American economy. Justices Roberts, Alito, Kennedy and Thomas voted against....

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Th Basel Committee on Banking Supervision set strict financial guidelines for capital and liquidity that banks have to hold, but failed to implement early compliance. Banks get 8 years to comply for most of the banks, and 13 years for some of the banks. Increasing capital requirements by triple the current levels in the form of current equity, as required by the new Basel rules, gives banks a larger buffer in a situation that some of their assets lose value in a crisis such as the one in 2008. The US argued for stronger requirements and early implementation. Germany held back the implementation timetable mainly because its regional banks are saddled with bad loans; which might require $100 billon capital infusion by the German government, if early compliance was set in the new rules. The result is that the Basel rules have not grasped the opportunity to act quickly to strengthen the banking system, according to Prof. Jeremy Stein of Harvard University, a former advisor to the U.S. Treasury Department. In Stein's view the timetable is so far out, that another crisis will probably take place before the implementation. In the event, regulators from the U.S., Germany, and other countries let fears of tightened lending by banks prevail to an extent where the new rules timetable is stretched way out for 8-13 years....

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Risks to China's banking system from the bond market in China. China's bond market has grown rapidly to 25.5 trillion yuan or $4.1 trillion yuan, especialy in the period following the stimulus. But it is not similiar to bond markets in developed countries, the U.S., Japan and France. It has a patchwork of regulators, is closed to foreign investors, and does not offer protections to investors. It also lacks an effective ratings system. Most bonds are held and traded by the banks, which concentrates the risks in the banking system. In developed countries the risks are spread out among investors. Bond markets offer the advantage of reducing dependence on banks for lending but with banks holding most of the bonds in China, including that of local governments, the risks if bond issuers default are concentrated in the banking system.

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How is the push by Toyota to hybrids making up 50% of its cars- including shift of RAV4 and Camry entirely to hybrid cars- affecting revival of US manufacturing and advanced technologies for electrification of cars? Toyota will invest $14 billion in a battery plant site in North Carolina, at a site located between Greensboro and Raleigh.The plant will make batteries for EV's and hybrids so that Toyota can respond to market demand and regulatory changes. This North Carolina plant will supply factories assembling cars, hybrids, plug ins that travel short distances before switching to gas. Hybrids including plug in hybrids make about 15% of US sales, a sector Toyota dominates. How does it affect tariffs risk? Currently Toyota plays a 15% tariff to import plug-in hybrids. The North Carolina plant will build capacity for batteries to put in 74,000 plug in cars, 45,000 EV's, 600,000 hybrid cars. How will it fight climate change? Toyota has always believed that hybrids with twice the mileage of gas cars are a good way to fight climate change, even when EV's were the rage in the days of the Biden administration. Hybrid Camry at $25,000 and RAV4 at $29,000 give 51 and 41 mpg. This strategy is now turning out to be the right one because of cost of living concerns balancing climate change concerns as priorities. It was alone in this view and took a lot of criticism for this. Now that rare earth metals that are hard to access from China are needed for EV's it is proving doubly right- giving Toyota the opportunity to double down on hybrids and also move into EV's with short range distances using gas after that. Future design of cities that are self sustaining in smaller distances, eliminating long commutes, could make this an interesting option, a style of living being tried out in Nordic countries and in Germany, France. With India and China burning coal and investing in renewables at the same time this was overlooked by the climate change planners in US and EU- the solution being natural gas and renewables including hybrids for the US and EU/ Japan advanced nations.   ...

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The National Credit Union Administration (NCUA) files lawsuits against J.P. Morgan Chase and Royal Bank of Scotland (RBS) for losses suffered on $50 billion in mortgage bonds held by the NCUA. The NCUA is the federal regulator for credit unions in the U.S. More than 40 credit unions failed and a large number have suffered losses and are in a weakened condition because of the mortgage crisis. Because of the losses the credit unions have to pay more into the NCUA fund, pay less on deposits and charge higher rates on loans. About $800 million in damages is sought by the NCUA, which would go to NCUA's insurance and emergency support funds.