The New York Times today says that the Federal Housing Finance Agency is set to sue major U.S. banks such as Bank of America, JPMorgan Chase, Goldman Sachs, and Deutsche Bank, among others. The U.S. government argues that the banks sold packaged mortgages as securities to investors while ignoring evidence that the homeowners’ incomes were inflated or falsified. That is, the banks failed to perform the due diligence required under securities law. When many of those homeowners were unable to pay their mortgages, the securities backed by the mortgages tanked. Housing and financial crises ensued.
Kinda late, isn’t it? Well, certainly it’s too late this time, to prevent the housing and financial crises of the past few years. What is the point of the suit, then? Does the U.S. Federal government really need the money that they can get from these banks, as damages, and will they give it back to all of us who lost money during those years? The U.S. might sue for around a billion dollars, which is peanuts these days. Divided by 333 million Americans, that would be about three dollars each. Why bother?
An important conceptual point here is the difference between ex post liability (after the fact) and ex ante incentives (beforehand). The point of this suit is not to collect a billion dollars after the fact, although arguments are made about the fairness of those liable to pay for damages. Rather, the point is to provide the proper incentives to private companies before the next time. To a private company, a billion dollars really is a lot of money. If they have to worry about the loss of a billion dollars, for ignoring their legal responsibilities, then maybe next time they’ll be more careful to follow the law.
Government regulation can take alternative forms. One alternative is to send auditors and inspectors into every bank, every day, to check what they are doing. That would be very expensive. A cheaper alternative is to let the banks decide for themselves if they are exercising due diligence, but with the “threat” hanging over their head that they might get sued if they don’t.