Finanzkrise und Reformbedarf: Gutachten für den 68. Deutschen Juristentag

The report provides an analysis of the financial crisis of 2007/2008 and draws some conclusions about the need for regulatory reform. The analysis ascribes the crisis not only to problems in subprime mortgage lending and securitization, but also to excessive maturity transformation and overindebtedness of financial institutions and to flaws in financial system architecture. Because of these flaws, the initial shocks of August 2007 induced a self-supporting downward spiral in financial markets and financial institutions, which only ended in October 2008 when taxpayers were forced to provide guarantees for financial institutions. The first part of the paper provides an in-depth analysis of developments in subprime mortgage lending and securitization, focusing on problems of security design and governance, and lack of external discipline from rating agencies or investors. The second part discusses maturity transformation and excessive indebtedness and their implications for the fragility of individual institutions as well as the system as a whole. Systemic fragility is seen as a result of the interplay of price declines in malfunctioning markets, fair value accounting, an insufficiency of bank equity, and regulation induced or market induced deleveraging, putting further pressure on markets and prices. The third part of the paper goes through the different causes of adverse developments, with a distinction between individual misbehavior and systemic flaws. Among systemic flaws, the paper discusses governance problems in mortgage origination and securitization as well as banking and shortcomings of regulation, in particular, capital regulation under the model-based approach. Reform proposals concern capital regulation, liability and remuneration of bank management, procedures for dealing with banks in difficulties, and insolvency law. The latter two subjects are introduced in order to reduce the scope for submitting government to blackmail by banks in difficulties.