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Double Standards: Market Failures, Government Solutions

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To their credit, lawmakers, regulators and the media have not yet begun to frame the story of the subprime mortgage mess in criminal terms. Forget Ben Stein because his antics have now made him forgettable. Even Gretchen Morgenson had to note in her Sunday column that the story of subprime profiteering was one of greed and not criminality. (Strangely, the entire Sunday Business section of the Times wasn't available online this morning.)
But the call for criminalization has already begun on the fringes and we wouldn't be surprised if before long we start hearing this from more mainstream publications. And if not criminalization, we expect the call for regulation to grow louder with each pasing day. It's a familiar dynamic, where market failure is addressed with regulation.
We're sometimes accused to have a knee-jerk reaction against regulation. This is unfair. Our problem seems to be a stubborn refusal to subscribe to the double standard that sees market failures and assumes available government solutions. But unless a plan for regulation addresses why the mechanisms and incentives proposed will result in effective regulation at acceptable costs, we think it best to avoid handing power over to government clerks.
Take the proposals to further regulate the ratings agencies. Sure they seem to have catastrophically failed to assess the risk in many credit products tied to mortgages. And, yes, they are rife with conflicts of interest. But we've heard precious little by way of practical solutions to these problems more detailed than abstract calls for "oversight" and "transparency." If wishing were a strategy, this would be enough. But the good intentions of those who see the market as an imperfect process is unlikely to transform the government into an effective institution.
There's a specter haunting these discussions, the specter of Sarbanes-Oxley. Our last round of financial scandal produced a clumsy and costly regulatory structure of unproven effectiveness. It would be a shame to repeat that mistake after this round of market failure.