"the U.S. embarrassedly taking its cues from the prime minister of England"

I have a lot of time for your comments, but please try to get the name of the country right - it undermines your credibility when you get simple facts wrong.

He is the Prime Minister (in capital letters) of Great Britain, not just England.

Judge Posner,

One minor correction - the plan to contribute capital came from the Prime Minister of the UK, not just England. Like the Prime Minister I'm a Scot and we tend to get prickly about that sort of thing. The proposal in the UK stemmed from serious capitalisation problems for the two Scottish banks.

Scott Wortley

Great post. Thank you so much for your extreme reasonableness and rationality and for being so free of ideology. It's a rarity in today's debates.

Jeremy Goodridge

Prof. Posner,
your description of "pure market economy" is seriously misleading. Why do you ascribe tort protection of consumer only to "regulated market economy" ? Or you just unintentionally make impression that under free market there is no legal protection, by saying that "if you get ill eating in a restaurant you have no legal recourse;(is that mean that in regulated market you can have recourse against bad quality food?) while in reality you don't think so? Are you suggesting here that under "regulated" market you have a guarantee that you will eat always good food in every restaurant, or you are suggesting that under free market you have no legal right to sue them if they poison you, i.e. threaten your physical integrity? If first, you are wrong from obvious reasons; if second you are wrong because legal protection is assumed as regular feature of free market economy. If consumer can prove that he was poisoned by restaurant he will sue the restaurant both in free market and "regulated" economy. You seem to employ favorite tactic of all supporters of government interventionism - mixing legal protection of life, liberty and property with government meddling and control (like government inspectors in restaurants). Those are not the same sorts of "regulation" - protection of individual is a part of free market system, and it isn't some addittional government regulation, in the sense inspectors are.

More generally, concerning financial crisis, you contradict to yourself, when analyzing "nirvana fallacy". You correctly point out that one cannot compare actual market, including all its imperfections, with imagined perfect world, but only with the world of government action, or intervention, to correct those market "failures". But, two sentences later you assume, without any argument that
"So a confluence of market failures has created an economic crisis, and the challenge is to develop regulatory responses that reduce the cost (net of the direct and indirect costs of the regulations themselves) of such failures."

But, how do you know that ANY government regulation will improve the things, and that what we need i to "develop regulatory response"? maybe we need "de-regulatory response". Isn't that textbook example of Demsetz's Nirvana Fallacy? Why do you not take into account possibility that maybe, just maybe, government regulation can be part of the problem, not of the solution, and that deregulation, i.e. move into direction of more free-market financial system would be much better than additional government regulation. Burden of proof is on you, but you just suppose, without ANY argument, that some sort of additional government meddling is a solution. What kind of analysis support your belief?

Balancing the interests of capitalism and democracy is the dilemma to be solved by any enlightened society. That has been demonstrated by both of their failures. There are those who regardless of how much wealth is accumulated will still pursue more to the detriment of society. Without regulation, that one-sidedness will eventually lead to revolution and loss of freedom. Pick your poison.

Just one more point.

If we can estimate costs of regulation ex ante, then we must be able to estimate cost of investment of particular kind, to predict new financial and industrial developments in the future, price movements and so on. But, if we can do all of this we do not need market anymore! We can return to socialism of Soviet style. They also believed they can predict everything better than market.

I think that experiences with financial crises attests that we cannot estimate costs of regulation on future economy. Actually, we have no clue about what problems will occur in the future. Financial regulation is always addressing past crisis.

I agree with the previous post regarding the fact that your description of a pure market economy as one in which there is no legal recourse for being sickened by food in a restaurant is well beyond what a true free-market should look like. I can not conceive of a healthy free-market without a vibrant tort system. Even in a pure free market there must be recourse for a consumer harmed by a person or business.

Jim, what is democracy? Democracy, in my view, is system of constitutional government with limited influence on economy. Such kind was envisioned by American Founding Fathers. Socialist enemies of free society use the term to describe plunder by political means, through taxation, redistribution and pervasive regulation. Under "enlightened society" socialists usually think "we, enlightened elites who now better than ordinary people what are they interests, and who now better than people what they ought to buy and sell, how and how much. And we'll impose on them our grand vision of society.".

I don't think that is is "balancing democracy and capitalism", but destroying the free society with the cynical excuse of its improving.

Wealthy people do not "pursue more on detriment of society". At the contrary, they profit only by serving the people. Politicians and regulators how use monopoly of power to destroy the wealth by pervasive regulations and high taxes pursue their interests "on detriment of society".

Jim, what is democracy? Democracy, in my view, is system of constitutional government with limited influence on economy. Such kind was envisioned by American Founding Fathers. Socialist enemies of free society use the term "democracy" to describe plunder by political means, through taxation, redistribution and pervasive regulation. Under "enlightened society" socialists usually think "we, enlightened elites who know better than ordinary people what are they interests, and who know better than people what they ought to buy and sell, how and how much. And we'll impose on them our grand vision of society.".

I don't think that is is "balancing democracy and capitalism", but destroying the free society with the cynical excuse of its improving.

Wealthy people do not "pursue more on detriment of society". At the contrary, they profit only by serving the people. Politicians and regulators how use monopoly of power to destroy the wealth by pervasive regulations and high taxes pursue their interests "on detriment of society".

Perhaps the worst consequence of the current crisis (and Bush’s policies in general) is the ammunition it gives free-market critics. Free-market capitalists ran wild, the critics say, and ruined our financial system along with millions of retirement accounts. And thus anti-free-marketers often convert the ignorant with arguments that contains half truths.

Sure, stiffer oversight may have prevented the subprime meltdown. But the reason we needed regulation is the federal government's intervention in the mortgage market. The federal government, starting with the Clinton administration and continuing with the Bush administration, pushed Fannie to offer mortgages to those in the subprime category. (See http://query.nytimes.com/gst/fullpage.html?res=9c0de7db153ef933a0575ac0a96f958260&sec=&spon=&pagewanted=all.) Financial firms bought up subprime-based securities with the implicit guarantee that government would back the loans if they failed. The federal government, through bad intervention, created a serious moral hazards problem.

The free market, then, did not create the meltdown. Because our system is largely a free-market system, though, and Bush pursued some free-market polices (e.g., lower taxes, free trade agreements), many incorrectly conclude that laissez-faire policies are culpable. In reality, we cannot say that unregulated, free-market policies fail because we lack sufficient evidence.

I agree with your second-sentence assessment: few people are emotionally committed to free-market ideology. Still, nearly all Americans are emotionally committed to freedom. If more people read the works of Milton Friedman, Kenneth Arrow, Howard Brown et al., they would recognize the close connection between free markets and freedom and, perhaps, feel a stronger commitment to free-market principles.

As for the breakdown of economic orders, it is fair enough. Although, I would go one step further. Let's call the completely open free economy, "Anarcho-Capitalism". And we certainly all know about the "Freedom" of Anarchy (where's Hobbes?). As for Socialism or the Command Economy, it does have a problem with the allocation of resources and production during times of peace. Whereas, during War, a Command Economy is essential too make sure that resources and production are allocated properly and aimed at the necesssary elements to support the War effort. So "Socialism" does have it's place. As for the intermediate form, a regulated Capitalism lying somewhere in between, is probably the best solution as the Judge points out.

!"NEWSFLASH"!

The A.P. releases report about potentially illegal Lobbying by Freddie Mac, i.e. "Stealth Lobbying" dating back to at least 2005 to try and kill a Senate Committee sponsored Bill aimed at creating greater oversight and regulation of the Home Mortgage Industry. Essentially, trying to "bribe" Republican Senators not to approve or bring to the floor the Republican sponsored Bill.

The Judge is right, the Nation has got a bigger problem than just the meltdown in the Banking and Financial Industry. How does one properly regulate, when the fundamental regulating process has been corrupted? Perhaps, while fixing this "Crisis of Capitalism" we also need to go in and clean out "K Street" in Washington D.C. while we're at it.

Prof. Posner-

Thank you for the reasonable post.

However, I have a concern. There are few, if any, people who would advocate for a socialist state, even if there is a significant recession. I think you are presenting a false dichotomy between extreme capitalism and communism.

Neither option is being considered! Rather, the question is: do you want a pseudo-socialist European state or an unregulated Chicago School-style capitalism? That is the question on the table. This is not a crisis of capitalism, merely a crisis of laissez-faire economic policies.

To present the “boogeyman” of socialism is to make a straw-man argument that does little to discuss the real issues.

I compared the Financial mess to Katrina on another Blog

My question is this like Katrina? i.e experts for years warned that a direct hurricane hit on New Orleans would have catastrophic consequences. This was not a big secret. Yet the safety measures taken were often superficial and inadequate to meet the potential challenge. Even residents of New Orleans, who should have been most aware of the potential consequences, discounted the risks.

Can the government prevent occasional severe hurricanes? No. Can they take steps to minimize the damage? Yes. But what is the optimal level of expenditures to protect against damaging storms? And can individuals do a better job of protecting assets then the government?

One of the problems with hurricane damage is the moral hazard of government bailouts. Residents in hurricane areas may take greater risks because they feel confident that the government will bail them out in the worst case scenario. We see to see some of the same risk with our current financial disaster, especially with regard to Fannie and Freddie.

I could go on with the analogy. But the point is many people knew that the financial system would be unable to withstand a direct hit. Safety measures were inadequate to deal with the risks, at least with the benefit of hindsight. Under pressure weaknesses became very obvious. Politicians had choices on how to prioritize government dollars, but they choose to emphasize politically advantageous expenditures over security.

Why did I not heed the warnings? Three years ago the AP had a story that I think came from the Milwaukee Journal about a real estate conference. One speaker, some past president of some professional group of mortgage lenders made dire predictions about the real estate market. He talked about increasing defaults and warned that as ARMs were starting to reset the default rate would quickly accelerate. He warned of the trillions in loans that were in danger of going bad and warned that the crisis would dwarf the S&L.

His reasoning seemed so sound, that I was nervous. I talked with two reporters for the Wall Street Journal about the article. I did some research on my own and the guy's numbers looked like they were correct.

So why didn't I act in accordance with this information. I am a passive investor for the most part. Index funds with a boring if generally accepted allocation.

I assumed that the coming storm might make the seas choppy, but I had faith that financial institutions must be at least as aware of these issues as I was. Two months, six months, nine months passed and I could not see evidence that the smart money was worried. Indeed the market was going up. So I stopped worrying.

I had considered buying a contrarian fund to hedge against a possible downturn. But most of the financial hedging strategies that I know are harder to implement in a typical 401K. If the money was in a traditional pension, I would assume that the managers would have taken more prudent steps to hedge the fund.

So I wonder how much the growing use of 401K is affecting the stability of the market. As larger and larger sums are held outside of the traditional pension system, and given to individuals to invest, are some market stabilizers being lost?

I understand that the marginal buyer sets the price, but what happens when the marginal buyer is taking increasing risks and the typical 401K owner lacks the ability to hedge.

BTW my comments above assumes that the movement of the stock market will become more volatile then the changes in the economy, ie if 401K investors have less ability to hedge against a crisis.

The failure of the financial institutions to manage their firms would still be the root cause of the problems in the current economy.

Brilliant post. Further testament to the fact that Judge Posner is one of the most valuable minds in this country. A million thanks if you read this, sir. You're an inspiration.

Brilliant post. Further testament to the fact that Judge Posner is one of the most valuable minds in this country. A million thanks if you read this, sir. You're an inspiration.

Brilliant post. Further testament to the fact that Judge Posner is one of the most valuable minds in this country. A million thanks if you read this, sir. You're an inspiration.

Dan, the typical 401(k) today is in some kind of diversified managed fund - the employee's contributions, that is. Employer contribs may still be weighted in favor of employer stock. But let's assume optimal diversification. Good article in today's WSJ about what stock fund managers are doing to survive the volatility and cash-outs: "sell the rallies." It can't be much different or less brutal right now in the 401(k) world. True enough, selling into the rallies enables fund managers to meet redemptions and switches to different funds/managers, but suppose you're left with other people's cash and a responsibility to put it back to work. It's a treacherous landscape. People are down 25%-30% on the year and growing impatient. Most folks at or close to retirement who were counting on eternal capital gains and some dividends, besides real estate appreciation, are now on their backs. A paid-off home mortgage and Social Security look better every day.

Judge Posner,
I believe that an extension of the logic of 'managed' economy concept fits somewhere between rudderless free capitalism and regulated economy/market, and that is what remains a rather robust prescription for sustainable and efficient functioning of a developed economy as in the US. This is predicated on limited self-discipline of economic agents operating under a free market system, and rather incomplete specification of laws and contracts. A mechanism of pragmatic supervision (which I called 'prudent regulation' in my book "Development Finance") remains a perennial requirement for now and into the future.

I agree with Zach. I think you massively underestimate the affinity of average people of all political stripes to regulated free markets. As one example, name any politician who has proposed abandoning a regulated free market system, other than with regard to the temporary capital injections into financial institutions.

I believe what you refer to as "socialism" is actually what I think most people would understand as "communism," but I would be interested in hearing what you think distinguishes the two. Which countries today do you view as having a socialist system?

I also think you fail to distinguish between the American-style less-regulated free market and the European-style more-regulated free market with a bigger social safety net, which is where the whole ballgame is played.

(Your discussion of unregulated free markets is interesting but not especially useful other than for pointing out that those claiming to support completely free markets are mostly right-wing liars or anarchists. Read David Boaz at Cato claiming that the problem is that we still have yet to implement a true free market economy.)

Brian,

Even I, with a collection of index, foreign, bonds, etc was technically diversified but few of my accounts are really actively managed. My point was that I had wanted to short my positions because I was afraid of the housing bubble and its affect on my portfolio.

If I had wanted to insure against that potential risk that I saw coming, it would be difficult for me and most people. However a good manager of pension plan should have been able to do it a lot easier.

While I can create a portfolio with a ten year outlook, I'm not sure how I can easily take short positions, buy insurance on my portfolio when I see a storm on the near horizon.

Perhaps you are correct that the managed funds inside of 401K plan could have done this, but it doesn't seem like they did. Why they did not do it would be interesting to know. Did they not see the danger, did they not think it would affect their fund, or do they just keep a long term view and discount potential blips along the way.

Still, I would have liked to have had portfolio insurance for my 401K during the current mess. I think smart managers of large positions should have see the bubble risk and bought portfolio insurance.

Perhaps the stock market would have been less volatile. Attacks on the financial system and calls for rather extreme measures would have been muted. And people might have more faith in markets, if they knew how to use them to hedge risk.

But I could be wrong

As for noise, life is difficult when signals are mixed-up. Do Stan O'Neal, Jeff Skilling and George Bush all have Harvard degrees? You would think they are not generators of noise.

Dear Judge Posner:
A "regulated market economy" is almost a contradiction in terms; I would suggest that there is either full laissez-faire capitalism or statism (with the degree of governmental intrusion to be decided upon). The American economy, technically speaking, is not capitalist but statist. There presently exists in our country a greater degree of capitalism and a lesser degree of statism relative to Western Europe but, again, this is a matter of degree.
Otherwise, a great article.

DanC, For the individual investor, the new exotic Financial Instruments, that allows for hedging and the like to protect asset income only works for what I call "Portfolios of Scale". This scale begins in the millions and runs out to the trillions/quadrillions of dollars. Remember, they only work if the portfolio does not contain quantities of "gilded paper" or "pigs in the poke". Which is what the current meltdown is all about. The problem is, that most of these new financial instruments do not have real or tangible assets backing their value. Like natural resources or capital equipment and production capabilities. So, hence, their loss of value when their perceived value crashes. So you see, it's really all about an "Economy of Fantasy" - "never mind the facts, live the fantasy".

neilehat, completely agree. "Economy of Fantasy" reminds me of a couple of weeks ago when the banks actually wanted to be able to suspend accounting standards and "Mark to Myth" the value of the crap paper.

But let's not blame the poor paper. Paper is just pressed paper pulp with maybe a little rag if it's the good stuff. It's the poor craftsman who blames his tools.

Managers at the banks after 2002 had no excuse not to see that we were in a bubble. Curves that look like this are a "red flag," donchathink?

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As opposed to:

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Regulation is order placed on a chaotic system that provides value for a cost. Without it, the laws of entropy take over. Entropy is a reversion to lowest-common-denominator brute forces of nature. Like my office desk when I don't stay on top of my piles of stuff.

Let's see if my lovely art work comes out right this time:

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and
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Online Debate on the Financial Crisis at Economist.com
Proposition: "It would be a mistake to regulate the financial system heavily after the crisis"

Pro: Professor Myron Scholes, Stanford University
Con: Professor Joseph Stiglitz, Columbia University
Moderator: Henry Tricks, Finance Editor, The Economist

Comment to the Moderator on Professor Scholes' Opening Statement:

Sir,

The financial system needs to be regulated mainly because the theoretical underpinnings of modern finance are quite weak and outdated. For example, let us take the Modgliani-Miller theorem which forms the central theme of Professor Myron Scholes' Opening Statement in this debate. This theorem states that the value of a firm is independent of its debt-to-equity ratio. For its simplicity and effectiveness, this theorem is definitely a creditable achievement of modern economics. Indeed, its discoverers Professors Franco Modgliani and Merton Miller went on to win the Nobel prize in Economics (at different times), for this theorem and other achievements. When this theorem was first established more than 50 years ago, it applied very well to the industrial economy of that time.

In those days, if an entrepreneur wanted to start a business for the first time, say a small factory or a retail shop, his/her initial investment (down-payment) would have to be substantial, say 25 percent or more. A financial institution, like a community bank, would lend the rest of the money. The bank can verify that its money is being used to actually build the factory, a physical asset, and thus it has a fairly good understanding of how its money is being employed for making profits. After several years, if the business runs successfully, the entrepreneur goes back to the bank to help build a second factory. After this process happens a few times, the company has grown quite large, having established a successful business model with a well-understood revenue/profit stream. At this point, the entrepreneur realizes that to reach economy of scale, (s)he has to jack up his/her business plans by an order of magnitude, and (s)he would have to find access to much larger sources of finance. The result is that the company goes public. Note that the entrepreneur also benefits personally because his/her own investment in the company, which is now made into shareholding claims, has become more liquid. The company could issue more shares in the stock market, i.e., increase equity, or issue bonds in the credit market and/or get more loans, i.e., increase debt, to raise capital for its further business ventures.

Now, by the time the company has reached this situation, invariably, its balance sheet would have grown to include far more than just equity and debt. Due to accumulation of profits over the years, it would have reserve funds. Then again it would have to pay into its employees' pension funds. It would be helpful for the reader to keep in mind some large corporation of the 70s and 80s, like Bethlehem Steel. The company would have a large number of assets and it would indeed be a huge undertaking, far more than just the sum of its equity and debt. The Modgliani-Miller theorem says that the total value of the firm, as given on its balance sheet, would not be dependent on the ratio of its equity and its debt. Moreover, the creditors (those who have furnished the company with its debt) can also understand the business model of the company by verifying the company's assets, which are mostly tangible and real. Here I would like to point out that it is not in the creditors' interest to take over the company, because the entrepreneur-industrialist brings substantial expertise about how to pursue profit-making opportunities during the day-to-day functioning of the company. In this context, the theorem provides the (very) useful information that while analyzing the balance sheet of the company, one need not worry about the debt-equity ratio.

In contrast, there are a lot of problems when one tries to apply the Modgliani-Miller theorem to figure out whether regulation of today's finance industry should stop with 'capital requirements and pricing flexibility', as mentioned in Professor Scholes' Opening Statement. Now, a typical 'bulge-bracket' investment bank (like the top few Wall Street firms) would have about 30 to 40 billion dollars in capital (equity + accumulated profits). However the bank would have borrowed over 800 or 900 billion dollars to finance its operations (and hence the oft-quoted leverage ratio figure of 25 to 30). At this point, it might be helpful for the reader to actually see the balance sheet of a publicly traded Wall Street investment bank (it is available for free on Yahoo Finance).

Now where did the 800 to 900 billion dollars come from? They came from the pension funds and the mutual funds. Hence, there is a serious problem here. If you asked a pension fund manager in 2003 about the details of the mortgage securities, (s)he would have had no idea how the whole process works, because financial innovation was happening at a furious pace, and there was a whole alphabet soup of CDOs, CDSs, AAA MBSs being created newly every week or so. Thus, while the industrial economy of the 1950s, 60s and 70s had the entrepreneur operate at leverage ratios less than 10 and gave his/her bankers a fairly good idea about the business model, the technology and the innovation, in sharp contrast, the creditors of the contemporary finance firms have no way of knowing whether their money is being employed in the business venture in a sensible manner. And most importantly, the entrepreneur whose own stake is only 40 billion dollars controls the whole of the 900 billion dollars. Unlike the situation in the industrial economy, the long-term economic contribution of the entrepreneur is quite suspect precisely because a financial crisis could wipe out his/her business venture (40 billion) whereas the total value (900 billion) is more stable.

This is the fundamental weakness of modern finance theory. If the common (wo)man had followed the news about Wall Street since the beginning of this year, (s)he would have mostly heard about the high leverage ratios in the investment banks, about sub-prime mortgages, about the credit freeze and how it is all going to come down on Main Street as a huge financial meltdown. In talking about debt and equity, the Modgliani-Miller theorem gives the illusion that the whole of the 900 billion dollars is a part of the investment bank, when in fact, that money belongs to the pension funds. The pension funds and mutual funds carry anywhere from 20 to 50 trillion dollars of people's savings (source: Wikipedia). So, the discussion among financial experts in the media should have focused on these large accumulations of capital. This approach would have avoided fear and panic in the financial markets, but perhaps it would have also made it impossible for the Wall Street investment banks to extract more than 20 percent returns on capital year after year.

Thus, the financial system needs to be regulated until the experts of modern finance can go back to the drawing board and work out a more stable foundation. Instead of promoting financial innovation in the markets, they should conduct credible research in finance at the universities. Having said that, I have to mention that I am also quite worried that after this Presidential election in America the extreme leftists would take control of the government and the media which would lead to tax-and-spend liberalism and big government. There is a grave risk that re-regulation would quickly become excessive.

Coming back to Professor Scholes' Opening Statement, further objections to modern finance theory can be made from other perspectives. The first objection is based on the economics of asymmetric information. For an excellent overview of this perspective, please see Professor Kenneth Arrow's article 'Risky Business' in The Guardian on October 16, 2008. The second objection is more subtle. It says that economic risk cannot be quantified so easily as modern finance theory presumes. For this perspective, see Professor Edmund Phelps' article 'Our Uncertain Economy' on March 14, 2008 in The Wall Street Journal.

While the first and the second objections concern the focus of modern finance on risk management at the level of a company-firm, by far the most common criticism of finance theory is that it is ineffective in containing systemic risk. This perspective has been given much needed theoretical heft and some respect by Professor Gary Becker's article 'We're Not Headed for a Depression' on October 7, 2008 in The Wall Street Journal. Particularly striking is his statement, "The main problem with the modern financial system based on widespread use of derivatives and securitization is that while financial specialists understand how individual assets function, even they have limited understanding of the aggregate risks created by the system". Lastly, please check out my blog-post where further clarifications about the current financial crisis are given: http://selvasblog.blogspot.com/2008/10/faq-on-current-financial-crisis-q1.html

Further critiques of the Modgliani-Miller theorem from more advanced perspectives

1) Professor George Akerlof has proposed a new formulation of maco-economics which takes the Modgliani-Miller theorem as one of the given conditions of the economy (he calls these conditions neutralities). Then he attempts to derive these conditions in a rigorous way by extending on the traditional micro-economic assumptions that a firm would aim for profit-maximization and a consumer would aim for utility maximization. The extensions he assumes are basically norms on the behavior of the consumer, which he calls 'realistic norms'. Please see his Presidential address to the American Economic Association in January 2007, 'The Missing Motivation in Macroeconomics'. However, one should note that the Modgliani-Miller theorem is far from the last word even in the industrial economy of the second half of the 20th century. One should recall how many large corporations, e.g., Bethlehem Steel, had underfunded their pension plans for prolonged periods of time. In the case of the steel-making corporations, when it was finally discovered that their balance sheets had simply been out-of-touch with reality for the better part of two decades, they went into bankruptcy courts. The pension plans and health benefits of their employees had to be foregone, and they were sold for fire-sale prices to become what is now Arcelor-Mittal steel company.

2) Demographically, the aging of the baby boomers has meant that the typical American investor is aging (as measured by average age or median age). Hence portfolio management advisors would invariably be advising their clients that they need to reduce risky investments as they approach retirement. In the aggregate, this means that as a nation, the United States, and similarly, other advanced industrial countries, would prefer progressively more cautious investments in the next two decades or so. However, in saying that it does not matter whether a firm prefers debt or equity to finance itself, the Modgliani-Miller theorem does not address this demographic reality well. In fact, with the enterpreneurial culture in a capitalist society, the equity-holders take full control of the firm, even though their own stake is as much as 30 times less than the debt-holders. In modern times, there is also the conflict of interest between share-holders and management. These developments are at odds with the demographic realities of today. Thus a different theory of finance that takes into account (i) the changing risk tolerance of the population, and (ii) the relative stakes of the management, creditors and shareholders could definitely be more suited for the future.

to nellehat
That was my point and question. Have 401k's added to recent market volatility because average investor's are unable to manage their portfolios as well as traditional pension managers did in the past?

And has this added to the feelings that the market is failing?

Many people saw the train coming but didn't know how to get off the tracks. Now they are demanding that the train be made safer. The danger is that the safest train is a parked train.

So do we need stricter outside regulation of trains, or does the market need to find a safer way for people live with trains? Which method offers the best solution on balance?

I guess my preference is to give people information and encourage them to take sensible precautions.

But Posner is correct that many innocent bystander are being hurt by the mismanagement of others. Regulations can serve, should serve, to protect these people.

Mismanaged banks are especially prone to damaging innocent bystanders. Plus they are critical to providing vital services to the full economy. These externalities, good and bad, are why governments have an interest in how they are run.

However, when Posner writes about regulation above he sounds more like a judge who is thinking of how he would apply various rules to assure a just, or at least efficient, outcome. He does not sound like a businessman who must deal with the consequences.

Next he seems to understate that the writing of regulations is a political process. New regulations will reflect a change in the power structure and we will create a new cascade of unintended consequences.

I think it was Milton Friedman who argued that by the time politicians and the press realize that we have a problem, a free market is trying to solve it.

I prefer, and trust, market based solutions. In the case of restaurants I place more trust in the profits of running a reputable restaurants then I do in rather easy to bribe inspectors.

Agency issues were at the root of many of our current troubles. And the fact that huge profits could be made, were made, if you are able to avoid the consequences of your actions.

Dan, Response to question 1:

Yes. As most 401K holders, myself included, don't have the time to study and play the nuances that an individual does who does it for living. But then I doubt he can convert hydrocarbon feed stocks to gasoline and diesel (Oh! that's archaic industry - let's get rid of it). It's a world of specialization. As most 401k holders are attempting to do, simply ride the storm out and hope we don't get caught holding the bag. Hopefully, the fund managers are doing their jobs. Remember, as the salesman said when they moved from pensions to 401K's, "we'll all be better off finacially (i.e. wealthier) when it comes time to retire"!

Response to Question 2:
Worried? Hell Yes. As for my pension, I hope it's still there when I retire. You see, it got dumped into the Pension Benefit Guaranty Corp. and they've got problems. Same with Social Security. I won't even mention the supposed stability of an Annuity. What with AIG going belly up. As the old Western addage put it, "Save one bullet for yourself". So tell me all about giving people information and encouraging them to take sensible precautions.

Ivan brings up what has been the "non-debate" of the last 35 years, however, the events of the day bring the debate that should have taken place many times in the recent past is certainly center stage now.

"Jim, what is democracy? Democracy, in my view, is system of constitutional government with limited influence on economy. Such kind was envisioned by American Founding Fathers."

........... Yep, that's the thesis statement. But democracy is by definition self-rule by an enlightened citizenry in our case by a representative republic form. All through our history there is the concept of developing our resources for the benefit of THE people and such is written into the C's of most of our states as well.

Surely there are citizens deciding the "compensation packages" for our top gleaners, however, they fall far short of "demos"

1. the common people of an ancient Greek state.
2. the common people; populace.

and far short of having the common people's welfare in mind.

"Socialist enemies of free society use the term to describe plunder by political means, through taxation, redistribution and pervasive regulation. Under "enlightened society" socialists usually think "we, enlightened elites who now better than ordinary people what are they interests, and who now better than people what they ought to buy and sell, how and how much. And we'll impose on them our grand vision of society."."

.............. We've far too much of this "socialist enemy of the free state" rhetoric these days and for my part I'd much rather that the state NOT have to be engaged in "redistribution" be it the kind of FDR/LBJ or Reagan/Bush. It would serve us far better had the rising tide of a doubling of productivity raised ALL of the boats instead of leaving us with this, unworkably, steep wage/wealth curve.

Surely the power of the capitalist engine would be increased were the cost of labor fully allocated to the company enjoying the benefits of that labor than that of being third partied to us taxpayers as is the case today and perhaps most egregiously in the case of Walmart, one of the richest corporations in history whose bottom line is fattened by over a billion/yr of taxpayer paid benefits so their employees might approximate a living wage.

"I don't think that is is "balancing democracy and capitalism", but destroying the free society with the cynical excuse of its improving."

............... I'd bet heavily that were our founders here today they would take issue with your vision of "The Market" being America's sacred cow. But, for now leave out any consideration of demos, as NOT balancing an engine will also cause its early demise. What is yet to be debated as our economy melts down is the shortage of DEMAND. In EVERY sector sans energy and food for the poor, our and the world's economies are in a position of over-capacity and a shortage of demand.

Why? Wages have failed to increase while costs of the basics have risen so there is not enough discretionary income for most people to sop up the surplus, and with no "stock market" ATM nor "home equity" ATM those thought to be solidly middle class will join those below in having no discretionary income.

It's been clear to all but the "supply-side" "Reaganonics" set the all games and all engines have rules of operation, and regulations. The last rounds of a Monopoly game shows what happens with all the property and income are in the hands of too few.

"Wealthy people do not "pursue more on detriment of society". At the contrary, they profit only by serving the people."

.............. WOULD that such were true!! Each day brings us more stories of self-dealing corporations feeding directly from the Federal or State troughs or purchasing sweetheart subsidies ala ethanol or profiting from sole source contracts as H-burton, Blackwater and the like. Even the "good guys" such as Gates pushes the line on anti-trust and the list goes on.

"Politicians and regulators how use monopoly of power to destroy the wealth by pervasive regulations and high taxes pursue their interests "on detriment of society"."

............. worded a bit differently I'd be with you on this one, as I too would like to see LESS power from "our representatives" dealt out through the lobbyists who fund their elections and show up for their reward of more market distorting favoritism. The auto industry is a prime example; instead of predicting the obvious and phasing into a fleet relevant to our times they bought energy instability from Congress and delayed the day of reckoning, now they, we, and most regrettably their employees are paying the price.

.......As for taxation let's remember it is ALWAYS the amount they spend, not the amount they collect, as we see today with a mountain of nation crippling DEBT.

I stand corrected. The WSJ reports that some traditional pension plans have done poorly this year, as bad or perhaps worse then 401K plans.

If everyone knew housing was a bubble, why do so few act to protect themselves?

Had the risk premium to attract investors really fallen that low that is was negative for a period? So low that the market was no longer efficient? Why didn't people grab the opportunity that opened on the other side?

I stand corrected. The WSJ reports that some traditional pension plans have done poorly this year, as bad or perhaps worse then 401K plans.

If everyone knew housing was a bubble, why do so few act to protect themselves?

Had the risk premium to attract investors really fallen that low that is was negative for a period? So low that the market was no longer efficient? Why didn't people grab the opportunity that opened on the other side?

Thank you Judge Posner for a very informative post. The public library here is now preparing to obtain Wohlstetter and Roubini (excuse spelling).

Dan, Ahh Yes! Entropy! I like Entropy and the other Laws of Thermo. They explain an awful lot, not only in Physics. In fact a new discipline is developing within the discipline of Economics, "Thermo-Economics". Cool stuff! Perhaps someday we'll get a truly Scientific based Economic Order. Until then ...

Yeah, the curves can get a little weird sometimes. I find the "curves" utilised in Econ. 101 thru xxx to be a little simplistic. The World is neither Two Dimensional or Linear. More like 8th or 9th order multivariate polynomials. But, try teaching this to Freshman and the like coming in these days.

Creative destruction at work. Too bad Big Brother is reverting back to interventionism.

I believe the issue is not so much a problem with capitalism, per se, but what the public perceives as "capitalist". I continually have students trying to explain to me that socialism is "caring for the poor" and capitalism as "giving to the rich and and taking from the poor" or "greed-inducing". To be honest, I believe the average voter is on par with this sort of twisted understanding, often equating the Republican Party with free-market capitalism and the Democrats with socialism. Perhaps if our friend Milton gets his way and US citizens are truly allowed freedom of choice in education via school vouchers, competition in schooling will create more critically-thinking individuals rather than the lefty kids the teachers unions are creating... Alas, it will never happen.

Standard & Poor's is on the congressional "hot seat" at the moment, for whatever that is worth.

Congress released the transcript of an interesting IM exchange between two S&P employees the other day showing a bit of conscience and cynical humor about S&P being willing to rate MBS transactions "structured by cows."

S&P's CEO testified that no one knew the extent of the risks involved and that they certainly would not have given high ratings had they known. Good luck with that defense, Mr. Sharma.

Captain Renault: I'm shocked, shocked to find that gambling is going on in here!

Croupier: Your winnings, sir.

Captain Renault: Oh, thank you very much.

Judge Posner,

A fascinating post. One small complaint: The Prime Minister of "England" is properly called the Prime Minister of the "United Kingdom" (a landmass comprising England, Scotland, Wales and Northern Ireland). Indeed the particular Prime Minister of which you wrote - namely Gordon Brown - is himself Scottish.

Many thanks,
(a wounded Scot)
Paul H

Extremely interesting posts. But, I don't think the question is framed correctly. Rather than "Has the market economy failed?" I think the more apt question is "have certain market actors and regulatory agencies failed?"

Technically speaking, the failure of the market would mean a failure of the process of allowing supply and demand, in the context of free competition for the sale of goods services, to determine prices.

I don't think that's the case at all.

Rather, the failure has more to do with the shift toward speculative, as opposed to productive, economic activity and behavior aimed at maximizing short-term financial gains, as opposed to long-term wealth creation.

I think the conflation of "market economy" and "capitalism" clouds the debate: while capitalism requires a market economy, a market economy doesn't require capitalism. What about a market economy in which a plurality of actors compete: privately-held firms, employee owned firms, cooperatively owned firms, publicly-traded firm etc.

In accepting the "necessity" of some regulation let's not forget the extent to which regulation encourages risky behavior, as decision makers substitute rule-following for the exercise of judgment. When the speed limit increases so does the pressure on our right foot. And we focus our attention on radar traps rather then driving hazards.

Folks, ya know what? It's one of life's heard-learned lessons, but usually the contract you already had is the best one you're gonna get, besides being the least likely to cost you a ransom in transaction expense or litigation. We've thrown about as many $ Billions as we can at the banks and brokers until the EESA goes back to Congress for an interim performance review. America needs to put the brakes to this foolishness and get on with the foreclosures, come hell or highwater. Or have we become so irretrievably politically correct that we're Mexico, or worse, Argentina, where a private contract apparently means nothing? Economics won't cut our losses accrued and accruing any more than GoJo hand cleaner will grow new hair on my balding head. Practical economics can help us pull ourselves out of the ditch. But it won't be quick or cheap.

Brian, Your neighbor's house is on fire, let's throw gasoline on it too speed up and increase the size of the conflagration instead of letting him borrow the hose.

Great idea!

I good report on the failure of Fannie and Fred and how politicians, regulators and some market forces shaped their mission.

A very good read

http://www.aei.org/docLib/20080930_Binder1.pdf

Brian: The contract litigation that we will see over the next 10 years is going to be something to behold.

Dan,

You're so right - if anybody contesting enforcement gets to court! It's beyond me why the feds didn't just go ahead and declare D'Oench, Duhme on everybody in default. Election year politics, I guess.

Hey, you and I and most of America AREN'T to blame for the rank recklessness, cronyism, irresponsibility, fraud, greed, and abuses inflicted upon us by people unto whom we entrusted stewardship of free-market and legal institutions crafted over thousands of years, the "blessings of liberty" for which countless Americans have made the ultimate sacrifice in battle. My point is we need to get on with the mop-up and quit pretending we can turn lead into gold.

That McMansion next door, what if it was a firetrap from the git-go? Sure, I'll extend my neighbor a hose and a hand - it's my MORAL duty - but the exercise is probably futile. Like with hundreds of thousands, if not millions, of others in similar predicament economically, it's probably occurring to my neighbor by now that his immediate self-preservation will be furthered by simply getting out, letting it go, starting over. We'll not get this done in a way that passes a smell test on Main St, however painful, until everybody holding a piece of the bag has to eat it. Maybe we'll come out of it stronger, smarter, and a little less self-indulgent.

Would anyone be so kind as to explain the difference between a shortage of liquidity, and a shortage of solvency. There are very closely related I believe. Please forgive my naivete on this matter, but as I see it they both involve not having enough cash to run a business right?

"So a confluence of market failures has created an economic crisis, and the challenge is to develop regulatory responses that reduce the cost (net of the direct and indirect costs of the regulations themselves) of such failures."

Such words are nonsense. We are a nation of predators. We are an army on the march. We have no morals and no real vision. We like to gratify our instincts. Regulation "net of the direct cost of the regulations themselves." Just who is going to figure that out? Come on!

Sometimes I think we would be much better off if the people on the pundit circuit would try to make a living from the creation of worthwhile products. Most words pundits weave mean nothing.

Neither Posner or Becker have the courage and clarity of mind to say what is really going on, why our country and our economy is bankrupt.

They like most of us are out weaving words and concepts and whatever. They and we do not make anything anymore. Maybe we would all be better off if we started making and selling things again which made it possible for people to live in modest contentment.

"So a confluence of market failures has created an economic crisis, and the challenge is to develop regulatory responses that reduce the cost (net of the direct and indirect costs of the regulations themselves) of such failures."

Such words are nonsense. We are a nation of predators. We are an army on the march. We have no morals and no real vision. We like to gratify our instincts. Regulation "net of the direct cost of the regulations themselves." Just who is going to figure that out? Come on!

Sometimes I think we would be much better off if the people on the pundit circuit would try to make a living from the creation of worthwhile products. Most words pundits weave mean nothing.

Neither Posner or Becker have the courage and clarity of mind to say what is really going on, why our country and our economy is bankrupt.

They like most of us are out weaving words and concepts and whatever. They and we do not make anything anymore. Maybe we would all be better off if we started making and selling things again which made it possible for people to live in modest contentment.

"So a confluence of market failures has created an economic crisis, and the challenge is to develop regulatory responses that reduce the cost (net of the direct and indirect costs of the regulations themselves) of such failures."

Such words are nonsense. We are a nation of predators. We are an army on the march. We have no morals and no real vision. We like to gratify our instincts. Regulation "net of the direct cost of the regulations themselves." Just who is going to figure that out? Come on!

Sometimes I think we would be much better off if the people on the pundit circuit would try to make a living from the creation of worthwhile products. Most words pundits weave mean nothing.

Neither Posner or Becker have the courage and clarity of mind to say what is really going on, why our country and our economy is bankrupt.

They like most of us are out weaving words and concepts and whatever. They and we do not make anything anymore. Maybe we would all be better off if we started making and selling things again which made it possible for people to live in modest contentment.

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