Streetwise Professor

July 1, 2017

All Flaws Great and Small, Frankendodd Edition

On Wednesday I had the privilege to deliver the keynote at the FOW Trading Chicago event. My theme was the fundamental flaws in Frankendodd–you’re shocked, I’m sure.

What I attempted to do was to categorize the errors. I identified four basic types.

Unintended consequences contrary to the objectives of DFA. This could also be called “counter-intended consequences”–not just unintended, but the precise opposite of the stated intent. The biggest example is, well, related to bigness. If you wanted to summarize a primary objective of DFA, it would be “to reduce the too big to fail problem.” Well, the very nature of DFA means that in some ways it exacerbates TBTF. Most notably, the resulting regulatory burdens actually favor scale, because they impose largely fixed costs. I didn’t mention this in my talk, but a related effect is that increasing regulation leads to greater influence activities by the regulated, and for a variety of reasons this tends to favor the big over the medium and small.

Perhaps the most telling example of the perverse effects of DFA is that it has dramatically increased concentration among FCMs. This exacerbates a variety of sources of systemic risk, including concentration risk at CCPs; difficulties in managing defaulted positions and porting the positions of the customers of troubled FCMs; and greater interconnections across CCPs. Concentration also fundamentally undermines the ability of CCPs to mutualize default risk. It can also create wrong-way risks as the big FCMs are in some cases also sources of liquidity support to CCPs.

I could go on.

Creation of new risks due to misdiagnoses of old risks. The most telling example here is the clearing and collateral mandates, which were predicated on the view that too much credit was extended via OTC derivatives transactions. Collateral and netting were expected to reduce this credit risk.

This is a category error. For one thing, it embodies a fallacy of composition: reducing credit in one piece of an interconnected financial system that possesses numerous ways to create credit exposures does not necessarily reduce credit risk in the system as a whole. For another, even to the extent that reducing credit extended via derivatives transactions reduces overall credit exposures in the financial system, it does so by creating another risk–liquidity risk. This risk is in my view more pernicious for many reasons. One reason is that it is inherently wrong-way in nature: the mandates increase demands for liquidity precisely during those periods in which liquidity supply typically contracts. Another is that it increases the tightness of coupling in the financial system. Tight coupling increases the risk of catastrophic failure, and makes the system more vulnerable to a variety of different disruptions (e.g., operational risks such as the temporary failure of a part of the payments system).

As the Clearing Cassandra I warned about this early and often, to little avail–and indeed, often to derision and scorn. Belatedly regulators are coming to an understanding of the importance of this issue. Fed governor Jerome Powell recently emphasized this issue in a speech, and recommended CCPs engage in liquidity stress testing. In a scathing report, the CFTC Inspector General criticized the agency’s cost-benefit analysis of its margin rules for non-cleared swaps, based largely on its failure to consider liquidity effects. (The IG report generously cited my work several times.

But these are at best palliatives. The fundamental problem is inherent in the super-sizing of clearing and margining, and that problem is here to stay.

Imposition of “solutions” to non-existent problems. The best examples of this are the SEF mandate and position limits. The mode of execution of OTC swaps was not a source of systemic risk, and was not problematic even for reasons unrelated to systemic risk. Mandating a change to the freely-chosen modes of transaction execution has imposed compliance costs, and has also resulted in a fragmented swaps market: those who can escape the mandate (e.g., European banks trading € swaps) have done so, leading to bifurcation of the market for € swaps, which (a) reduces competition (another counter-intended consequence), and (b) reduces liquidity (also counter-intended).

The non-existence of a problem that position limits could solve is best illustrated by the pathetically flimsy justification for the rule set out in the CFTC’s proposal: the main example the CFTC mentioned is the Hunt silver episode. As I said during my talk, this is ancient history: when do we get to the Trojan War? If anything, the Hunts are the exception that proves the rule. The CFTC also pointed to Amaranth, but (a) failed to show that Amaranth’s activities caused “unreasonable and unwarranted price fluctuations,” and (b) did not demonstrate that (unlike the Hunt case) that Amaranth’s financial distress posed any threat to the broader market or any systemic risk.

It is sickly amusing that the CFTC touts that based on historical data, the proposed limits would constrain few, if any market participants. In other words, an entire industry must bear the burden of complying with a rule that the CFTC itself says would seldom be binding. Makes total sense, and surely passes a rigorous cost-benefit test! Constraining positions is unlikely to affect materially the likelihood of “unreasonable and unwarranted price fluctuations”. Regardless, positions are not likely to be constrained. Meaning that the probability that the regulation reduces such price fluctuations is close to zero, if not exactly equal to zero. Yet there would be an onerous, and ongoing cost to compliance. Not to mention that when the regulation would in fact bind, it would potentially constrain efficient risk transfer.

The “comma and footnote” problem. Such a long and dense piece of legislation, and the long and detailed regulations that it has spawned, inevitably contain problems that can lead to protracted disputes, and/or unpleasant surprises. The comma I refer to is in the position limit language of the DFA itself: as noted in the court decision that stymied the original CFTC position limit rule, the placement of the comma affects whether the language in the statute requires the CFTC to impose limits, or merely gives it the discretionary authority to do so in the even that it makes an explicit finding that the limits are required to reduce unwarranted and unreasonable price fluctuations. The footnotes I am thinking of were in the SEF rule: footnote 88 dramatically increased the scope of the rule, while footnote 513 circumscribed it.

And new issues of this sort crop up regularly, almost 7 years after the passage of Dodd-Frank. Recently Risk highlighted the fact that in its proposal for capital requirements on swap dealers, the CFTC (inadvertently?) potentially made it far more costly for companies like BP and Shell to become swap dealers. Specifically, whereas the Fed defines a financial company as one in which more than 85 percent of its activities are financial in nature, the CFTC proposes that a company can take advantage of more favorable capital requirements if its financial activities are less than 15 percent of its overall activities. Meaning, for example, a company with 80 percent financial activity would not count as a financial company under Fed rules, but would under the proposed CFTC rule. This basically makes it impossible for predominately commodity companies like BP and Shell to take advantage of preferential capital treatment specifically included for them and their ilk in DFA. To the extent that these firms decide to incur costs (higher capital costs, or the cost of reorganizing their businesses to escape the rule’s bite) and become swap dealers nonetheless, that cost will not generate any benefit. To the extent that they decide that it is not worth the cost, the swaps market will be more concentrated and less competitive (more counter-intended effects).

The position limits proposed regs provide a further example of this devil-in-the-details problem. The idea of a hedging carveout is eminently sensible, but the specifics of the CFTC’s hedging exemptions were unduly restrictive.

I could probably add more categories to the list. Different taxonomies are possible. But I think the foregoing is a useful way of thinking about the fundamental flaws in Frankendodd.

I’ll close with something that could make you feel better–or worse! For all the flaws in Frankendodd, MiFID II and EMIR make it look like a model of legislative and regulatory wisdom. The Europeans have managed to make errors in all of these categories–only more of them, and more egregious ones. For instance, as bad as the the US position limit proposal is, it pales in comparison to the position limit regulations that the Europeans are poised to inflict on their firms and their markets.


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  1. Feedback: I love your blog, SWP, but you need to get the TLAs UC (under control). I work in finance and on a Saturday, after a couple of glasses of wine, I don’t know off the top of my head what you mean by an “FCM”. The rest of your acronym fest was comprehensible to me (from DFA to CCPs to TBTF) but perhaps not to all of your intended readership. Once I sober up maybe I’ll have an “oh, of course” moment regarding FCM (whatever that might mean) but for now, I register my feedback that you might want to throttle back the jargon, or at least provide more exegesis.

    Comment by Sam — July 1, 2017 @ 8:02 pm

  2. I call it Fraud–Dank m’self. Each to his own.

    Comment by dearieme — July 2, 2017 @ 7:17 am

  3. I’ve been with you since the beginning of Frankendodd. Didn’t understand a word of it, but I was there. :)

    Comment by Howard Roark — July 2, 2017 @ 9:10 am

  4. Spot on. Frank-un-Dodd (fud) effects are evident in many markets. Lower volumes, lower day to day volatility (since no one is incented to take risk and trade) and then huge moves to reprice news. As derivatives go, so have cash markets. In the end, the tails have gotten bigger. Not the desired outcome.

    Comment by Dh — July 3, 2017 @ 1:21 pm

  5. @Sam–The solution is obvious. Less wine! LOL.

    Sorry. Force of habit. The combination of an early exposure to the military (Thursday marks the 40th anniversary of my induction into the Naval Academy) and a career focusing on regulatory issues in finance has made my life akin to swimming in a sea of acronyms, and like a fish who doesn’t know it’s in water, sometimes I forget I’m awash in acronyms.

    “FCM” is futures-speak for “futures commission merchant,” which is a fancy name for a broker: FCM is a legal/regulatory status enshrined in regulation and statute (they must register with the CFTC) but the “commission merchant” lingo pre-dates US regulation. “CM” is also a relevant acronym in this context–it stands for clearing member, i.e., a member of a CCP. Whoops–another acronym!: central counterparty/clearinghouse (or would that be “CH”?).

    After my FOW 😉 talk I was at at a meeting at the CME Group (a name rooted in acronym for “Chicago Mercantile Exchange” but now the official name of the corporation) at the 30. S. Wacker location where I first worked 30 years ago. (Yes, once I had a real job!) I took the elevator I rode every day for a couple of years, and was thinking on the ride up that the independent FCM I worked for, GNP Commodities*, was a vestige of the distant past. Now the banks dominate futures brokerage, and also dominate clearing for swaps. Companies like GNP have almost entirely vanished.

    Thanks for the love. I’ll try to keep the TLAs UC.

    * According to a couple of co-workers, GNP was allegedly an acronym for “grain ‘n pigs” but I believe this was apocryphal, and an ex-post rationalization of the name.

    The ProfessorComment by The Professor — July 4, 2017 @ 11:57 am

  6. Don’t forget the CFTC’s insistence that swaps and futures be regulated in identical fashion, that ‘swap dealer’ is a meaningful concept when applied to banks, and that a tick-the-boxes compliance regime is an effective way to supervise risk management.

    Comment by DrD — July 6, 2017 @ 3:18 pm

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