The Yale Law Journal

VOLUME
120
2010-2011
NUMBER
6
April 2011
1278-1589
Feature

Failure Is an Option: An Ersatz-Antitrust Approach to Financial Regulation

Jonathan R. Macey & James P. Holdcroft, Jr.

120 Yale L.J. 1368 (2011). 

We distinguish the economic problems when large financial institutions (“banks”) become insolvent from the political challenges that exist before banks are distressed. These political problems arise because policymakers would like to be able to precommit while a bank is still healthy to refrain from bailing out the bank later, should it become distressed. Political theory and historical experience show that politicians facing unsettled capital markets and highly anxious voters will always bail out the financial institutions that they deem “Too Big To Fail.” As such, the only way for government credibly to commit to refrain from pursuing a Too Big To Fail policy is to break up the largest financial institutions before they become Too Big To Fail. We identify the size at which we believe banks become Too Big To Fail. Banks that reach this size should be broken up. Liabilities should be limited to a metric based on the actual funds devoted to resolving failed banks. The metric that we identify is the targeted value of the FDIC’s Deposit Insurance Fund. We would prohibit any financial institution from amassing liabilities in an amount greater than five percent of the targeted value of this fund. The government could thereby commit credibly to stopping bailouts and to pursuing a policy of allowing financial institutions to fail. We believe that the lost economies of scale associated with this “ersatz-antitrust policy” would be offset by the large savings realized by avoiding future bailouts.