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Journal Archives

The OCC Carefully Studies How to Fail

Posted on May 29, 2014 by William Black

The reason we have recurrent, intensifying financial crises is because we learn the wrong lessons from our prior crises and actively make things worse. The consistent explanation for our making things worse is that dogmas lead to “doubling down” on failed faith-based policies. The dominant ideologues in the U.S. and Europe on financial policies are theoclassical economists and their fellow choir members – neoclassical economists. A small article in the Wall Street Journal provides a classic example of the continuing destruction driven by these dogmas.

The WSJ article, of course, sees none of this. It fails to distinguish between two very different concepts. The Office of the Comptroller of the Currency (OCC) is supposed to regulate “national banks” – the largest banks. The first concept is where examiners’ offices are located. The OCC uses “resident” examiners in the largest banks. This means that hundreds of OCC (and Fed) examiners have offices in the huge banks. Resident examiners are a terrible idea because they invariably “marry the natives.” When the Fed “marries the natives” it constitutes incest because the NY Fed (which examines many of the largest bank holding companies) has traditionally been one branch of the inbred Wall Street family. The OCC, under Presidents Clinton and Bush, was nearly as bad because it was engaged in a “race to the bottom” with the Office of Thrift Supervision (OTS) to see which could “triumph” as the worst federal banking regulator.

If the OCC proposal was to cut back dramatically on resident examiners in order to beef up normal examination frequency and scope that would a very good thing that we could applaud. That would be the obvious fix that any effective supervisor would have implemented as soon as he or she was appointed. This is the second concept that the OCC could have meant by its proposal. It does not appear that the second concept is what the OCC’s leadership has in mind. Their system has increasingly deemphasized examination in favor of off-site monitoring (analysts in government office buildings looking at their computers). The OCC has not announced that it adopting an increase in examination frequency or the scope of examinations as a result of its decision to reduce the number of resident examiners.

We Know How to Make Examination and Supervision Succeed

In a normal examination the examiners’ offices are located in a federal building but the examination takes place in the bank’s offices. These examinations are our paramount function as banking regulators. In a well-functioning regulatory agency everyone adds value, but none of us can succeed if the examiners fail. During the S&L debacle, the reason we were able to reregulate successfully, to bring thousands of successful enforcement actions, and hundreds of civil actions, and to make it possible for the Department of Justice to obtain over 1,000 felony convictions in cases it designated as “major” was the examiners’ success. George Akerlof and Paul Romer recognized this point.

in full: http://neweconomicperspectives.org/2014/05/occ-carefully-studies-fail.html

Credit Suisse’s Guilty Plea: The WSJ Uses the Right Adjective to Modify the Wrong Noun

May 21, 2014

The Wall Street Journal has editorialized about Credit Suisse’s guilty plea in a piece entitled “If Credit Suisse really is a criminal, why protect it from regulators?” More precisely, and confusingly, the full title is:

“Holder Convicts Switzerland

If Credit Suisse really is a criminal, why protect it from regulators?”

The U.S. Saved Switzerland and Its Banks

I’ll begin by responding to the WSJ’s weird claims about Switzerland. Far from “convict[ing] Switzerland,” the U.S. Fed bailed out the Swiss Central Bank at the acute phase of the crisis (by making large unsecured loans to it in dollars) so that it in turn could provide dollars to its two massive, insolvent, and fraudulent banks (UBS and Credit Suisse). The Treasury, with the support of Secretaries Paulson and Geithner, used AIG to secretly bail out not only Goldman Sachs but also UBS (to the tune of $5 billion). The unconscionable deal was so toxic that the heads of each of the three U.S. financial regulatory agencies involved (Treasury, the Fed, and the NY Fed) deny that they had any involvement in the decision – it’s the Virgin Bailout.

UBS was contemporaneously negotiating a deal with the U.S. to pay a fine of $780 million to settle its criminal liability for aiding and abetting tax fraud by wealthy U.S. tax cheats – so we, in economic substance, paid their entire fine and added a bonus of $4.22 billion that rewarded the frauds. As always, the fine was assessed solely on UBS, not the controlling officers who grew wealthy through UBS’ frauds, so the senior officers got even wealthier through the massive tax fraud and the secret AIG bailout and they overwhelmingly got to keep their jobs and bonuses that their frauds and our bailouts maximized. (The secret U.S. bailout of UBS is considerably larger than the fines assessed to UBS and now Credit Suisse – combined – so the claim of U.S. hostility to Switzerland that the WSJ is pushing on their editorial pages is refuted by the facts.)

That secret Treasury bailout via AIG was in addition to the Fed bailout that kept UBS and Credit Suisse from collapsing in 2008. Herr Dr. Hummler, the head of Switzerland’s oldest private bank – the man who propagated the claim throughout Europe that the financial crisis was caused by making home loans to black Americans – bragged in my presence at a conference in Switzerland that the only reason his bank existed was to aid tax evasion by wealthy U.S. citizens. His bank, being small and unprotected by “too big to prosecute” was eliminated by U.S. criminal sanctions. He was up front about the fact that Switzerland’s fundamental strategy was to encourage and aid and abet the wealthiest people in the world evading their nations’ tax laws.

in full: http://neweconomicperspectives.org/2014/05/credit-suisses-guilty-plea-wsj-uses-right-adjective-modify-wrong-noun.html

The New Joke Defining the Supercharged Version of Chutzpah ( William K. Black )

Posted on May 16, 2014

By William K. Black

The old joke about how to answer the question: “what does chutzpah mean?” – has been rendered woefully inadequate by events. The old answer was: “Chutzpah is when a son kills his mother and father and asks the court at sentencing to show him mercy because he is an orphan.” The two variants of the new answer to the question of what chutzpah means are:

“Chutzpah is when a foreign corporation that commits tens of thousands of criminal acts that sicken and kill humans and animals and pollute the environment demands that a Kangaroo (faux) court order the government of the nation whose citizens were ravaged by those crimes issue an unconstitutional order to its courts ordering them not to hear the victims’ lawsuits seeking compensation for those crimes and demands that fines for billions of dollars be issues against the Nation (i.e., the victims) for refusing to implement that unconstitutional and unconscionable demand of the Kangaroos.”

“Chutzpah is when a foreign corporation selling cigarettes to the citizens of another nation – for the banal and grotesque purpose of becoming wealthy through the sale of a product it knows to be lethal and addictive – demands that the Kangaroos fine the Nation for the high crime of trying to protect the life and health of its citizens by discoursing smoking.”

snip* Reality-based Insanity

Here’s the kicker: the two new definitions are based on reality. The corporations are alleged to have committed vastly worse crimes and tortious acts than the fictional son. They committed their crimes and torts for far worse reasons than the (most likely) motivations of the fictional son. They made a vastly more absurd and outrageous demand – not for a reduced sentence but total immunity for their crimes and torts. And then they transcended the old joke’s concept of chutzpah by orders of magnitude by demanding that a government (and in economic substance that means the victims) pay an enormous fine for a bizarrely invented “wrong.” The Nation is accused of refusing to violate its constitution and any concept of justice by issuing an illegal order to its courts. The unconstitutional order that the Nation was ordered to commit would have forbidden the victims from raising their legal claims against the foreign corporation. This would immunize the foreign corporation for any crimes and torts that it committed. The new definitions of chutzpah involve alleged acts that are vastly worse in terms of the harm and motive, and demands by the alleged criminal that are vastly more absurd and vastly more outrageous than the old definition.

in full: http://neweconomicperspectives.org/2014/05/new-joke-defining-supercharged-version-chutzpah.html#more-8222

Geithner’s Other Ad Hominem Attacks on Barofsky

Posted on May 12, 2014 by William Black | 7 Comments

By William K. Black

In my first article on Timothy Geithner’s book entitled “Stress Test” I exposed the revealing and disgusting nature of his bizarre ad hominem attack on Neil Barofsky, the Special Inspector General for the Troubled Assets Relief Program (SIGTARP) for the great sin of providing his law enforcement officers (LEOs) with side arms and protective vests – an action any responsible leader of SIGTARP would make a priority. In this second article I discuss very briefly his other two ad hominem attacks on Barofsky and his staff.

Geithner Damns Barofsky for Lack of Expertise

This attack constitutes further proof of our family rule that it is impossible to compete with unintentional self-parody. Geithner complains:

“Barofsky’s desire to prevent perfidy was untainted by financial knowledge or experience.”


The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding

Nomination to First Circuit: David J. Barron

On September 24, 2013, President Obama nominated Barron to serve as a United States Circuit Judge of the United States Court of Appeals for the First Circuit, to the seat vacated by Judge Michael Boudin, who took senior status on June 1, 2013. [5] On January 16, 2014 his nomination was reported out of committee and is now pending before the full U.S. Senate[6]

Barron is known for coauthoring (with Martin S. Lederman) a Harvard Law Review article titled "The Commander in Chief at the Lowest Ebb - Framing the Problem, Doctrine and Original Understanding," Harvard Law Review, Vol. 121, Pg. 689, January 2008, which was an attack of the advice given by the Office of Legal Counsel to President George W. Bush justifying Bush's use of executive power during the War on Terror.[7]

The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding

Article by David J. Barron & Martin S. Lederman

Jan 1, 2008

121 Harv. L. Rev. 689

Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent”ť power as Commander in Chief to act in the absence of congressional authorization. In this Article, Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.”ť Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to war, the Commander in Chief often operates in a legal environment instinct with legislatively imposed limitations. In the present context, the Bush Administration has been faced with a number of statutes that clearly conflict with its preferred means of prosecuting military conflicts. The Administration’s response, based on an assertion of preclusive executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands.

This Article is the first of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. Professors Barron and Lederman demonstrate that, notwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly little historical evidence supporting the notion that the conduct of military campaigns is beyond legislative control. Thus stripped of its assumed roots in a supposedly longstanding tradition, and considered in light of the long pattern of executive acceptance of constraining statutes, the Administration’s recent assertion of preclusive war powers is revealed as a radical attempt to remake the constitutional law of war powers.

remainder: http://harvardlawreview.org/2008/01/the-commander-in-chief-at-the-lowest-ebb-ae-framing-the-problem-doctrine-and-original-understanding/

Indyk vs. Indyk

by Jamie Stern-Weiner | published May 12, 2014 - 11:31am

Israelis and Palestinians share responsibility for the collapse of Middle East peace talks. That was the message delivered on Thursday by US special envoy to the peace process Martin Indyk, in a speech to the Washington Institute for Near East Policy (WINEP). Israel issued tenders for 4,800 settlement units during the talks, he noted, while on the Palestinian side, accession to international treaties and reconciliation with Hamas had been “unhelpful” to US efforts to rescue an already faltering process.

More generally, Indyk argued, the parties’ lack of any “sense of urgency” made it impossible to bridge the gaps between them. Israeli politicians and their constituents were in no rush to abandon a “comfortable status quo,” while Palestinian officials found it “easier” to “appeal to international bodies in their supposed pursuit of ‘justice’ and their ‘rights’” than to “make the gut-wrenching compromises necessary to achieve peace.”

As a diagnosis of the talks’ collapse, Indyk’s speech flattered Israel. As unnamed “senior American officials” -- Indyk apparently among them -- had explained to veteran Israeli journalist Nahum Barnea earlier in the week, the negotiations were not derailed by “both sides.” The “primary sabotage,” they insisted, “came from the settlements.” Far from lamenting the Palestinians’ evasion of necessary compromises, the officials listed Palestinian President Mahmoud ‘Abbas’ many concessions, including on issues at the core of the conflict. Whereas Indyk’s speech credits Israeli Prime Minister Benjamin Netanyahu with having displayed a measure of “flexibility,” the officials made clear that Netanyahu at most, and at the last minute, and only in reference to his own extremist positions, budged an “inch.”

We did not, as Indyk suggests, need another six months of talks to “define” what those positions were. Leaked internal documents from previous rounds, published by Al Jazeera three years ago as the Palestine Papers, delineate them with painful clarity. They show that Israel’s terms for settling the conflict have remained consistent for more than a decade: annexation by Israel of the major settlement blocs, on approximately 9 percent of the West Bank; and a nullification of the Palestinian refugees’ right of return.


After Abuse Under State Supervision, Transgender Connecticut Teen Held in Solitary Without Charge

May 8, 2014

We look at the case of "Jane Doe," a 16-year-old transgender girl of color in Connecticut imprisoned in solitary confinement without any criminal charges. One month ago today, a Superior Court judge ordered her sent to prison after the Connecticut Department of Children and Families requested the transfer, claiming they could not safely care for her. The move is allowed under a rarely used Connecticut statute. To justify sending Jane Doe to prison, DCF cited her alleged history of violent behavior. But in an affidavit to the court, Jane Doe wrote: "I feel that DCF has failed to protect me from harm and I am now thrown into prison because they have refused to help me." She goes on to detail how she was repeatedly sexually and physically abused between the ages of eight and 15, at the hands of both relatives and DCF staff, all while she was under DCF’s supervision. Describing her confinement at an adult women’s prison in Niantic, Connecticut, Doe wrote in an op-ed for The Hartford Courant: "I’m in my room 22 hours a day with a guard staring at me — even when I shower and go to the bathroom. It’s humiliating. Women constantly scream and cry and it was hard to sleep. They moved me down a different hallway where it’s not as crazy. I tell myself that this is just a nightmare, but it doesn’t end." We are joined by Jane Doe’s lawyer, Aaron Romano, and Chase Strangio, staff attorney with the American Civil Liberties Union’s Lesbian, Gay, Bisexual and Transgender Project.


snip*Well, to talk more about Jane Doe’s case, we’re joined by Aaron Romano, Jane Doe’s lawyer in federal court. He’s speaking to us by audio stream from Hartford, Connecticut. And here in New York we’re joined by Chase Strangio, staff attorney with the ACLU’s LGBT Project.

We welcome you both to Democracy Now! Let’s begin with Aaron Romano. Tell us just where Jane Doe is now and what has happened to her?

AARON ROMANO: So, Jane Doe is in an adult female facility in Connecticut. There’s only one female facility in Connecticut. And because of her status as a juvenile, she has to be separated from any and all—from sight and sound from any and all adults. So she’s in virtual isolation from anyone else in that jail.

JUAN GONZÁLEZ: And why are they—why is the state claiming that they have so much problem being able to handle her?

AARON ROMANO: Well, you covered that a little bit here. She was in DCF supervision from the age of five and sexually abused from the age of eight through 15. So that was about seven years of sexual abuse that she suffered. While she was in a residential treatment facility, through DCF supervision, a staff member aggressively approached her, placed her in an illegal restraint. That staff member was later discharged for that illegal restraint. And she defended herself. After experiencing sexual abuse for close to seven years, a child will have a certain sensitivity to touch or approach and may interpret certain situations from a very defensive perspective. And the staff should have been well aware of that. So in response to that, DCF just wanted to pass the buck on, so to speak, to the Department of Corrections, and they wanted to just dump her on the Department of Corrections and say, "Listen, we don’t want to take care of her anymore. You take care of her."

in full: http://www.democracynow.org/2014/5/8/after_abuse_under_state_supervision_transgender

Big Banks Caught Red Handed but Continue to Avoid Prosecution

May 5, 2012

Bill Black: Despite a government accountability office investigation uncovering new evidence of illegal robo-signing, authorities still striking deals instead of locking up wrongdoers

snip* SHARMINI PERIES, TRNN PRODUCER: Welcome to The Real News Network. I'm Sharmini Peries in Baltimore.

This is our segment with Bill Black. Bill Black is an associate professor of economics and law at the University of Missouri-Kansas City. He's a white-collar criminologist and former financial regulator. He's the author of The Best Way to Rob a Bank Is to Own One. And he's a regular contributor at The Real News Network.

Thanks for joining us, Bill.


PERIES: Bill, I understand you have two strategies to report on today, one that throws the homeowners under the bus, and another one: how the federal government plans on protecting bankers once again.

BLACK: So the one about the homeowners has to do with a GAO study that just came out. And the GAO looked at one of these programs in which the banks agreed with the Federal Reserve and the Office of the Comptroller of the Currency, which is supposed to regulate the largest national banks, to review their loan files and find out where they had screwed up in foreclosures or failing to give relief and to provide substantial payments to homeowners who were the victims of this practice, except that it all went disastrously wrong. So they started this review of the banks' records, and it turned out that the records were in such terrible shape that the people doing the review, who were consultants chosen by the banks, concluded that they couldn't complete the review unless they spent many years and billions of dollars doing it, because the loan files were in such bad shape.

Now, that should have caused everyone to reexamine how often they were engaged in fraud, the so-called robo-signing in which they lied in their affidavits that they had established a basis to foreclose on people's homes. But, of course, it didn't lead to that. Instead, it led to a deal in which the OCC and the Fed released the banks from the requirement to do the file reviews. And the GAO says, because of this, homeowners will get a billion and a half fewer dollars. And, of course, there was no completed review to find the facts and to determine who actually was the victims of all of that. So that's the first atrocity.

in full: http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=11816

Deal Book Embraces Unintentional Self-Parody ( William K. Black )

May 2, 2014

I have been attempting the vain act of trying to embarrass the New York Times’ Deal Book feature into dropping its ethics-free reportage of elite financial crimes. I have had so little success that today’s James Stewart column reached the pinnacle of unintentional self-parody of Deal Book’s zealous efforts to remove any concept of ethics from its reportage of elite white-collar crime. The substance of piece is reporting that Steve Jobs “was a walking antitrust violation.” Stewart focuses on the cartel Jobs formed with other giant firms to fix (and suppress) employees’ salaries.

But the title of the piece takes the fact that Jobs was a serial felon who caused great harm to employees and preforms a remarkable transformation in which he is praised as “Steve Jobs, a Genius at Pushing Boundaries.” “Pushing boundaries” is Deal Book’s euphemism for Jobs’ crimes that he committed in order to make the already spectacularly wealthy CEO even wealthier – at the direct expense of his employees. And, this being Deal Book, and James Stewart being what Stewart has descended to, we have the inevitable claim that Jobs was a “genius” at crime. But it turns out that if you consider the facts reported; he wasn’t a genius. His violations of anti-trust law were obvious crimes. Instead, his key characteristic was the one we always emphasize is critical about the most fraudulent CEOs – audacity. Jobs had gotten away with committing so many crimes that he came to believe he was immune from prosecution.

At this stage in the story, Stewart obviously had to explore at least four ethical issues to explain to readers the significance of Jobs’ crimes. The first issue was the unique danger created by the fact that greed is insatiable. It did not matter how much a plutocrat Jobs became – he always wanted more and was happy to engage in brazen crimes to make him wealthier. The second issue is that he was willing to commit crimes that made him wealthier at the direct expense of his employees. Third, CEOs set the ethical “tone at the top” and when the CEO is a crook he sets a corrupt tone at the top that encourages the employees to commit other crimes and unethical acts that would boost their pay. Fourth, the CEOs of Apples’ top rivals agreed to commit the same cartel felonies as Jobs. This created a “Gresham’s” dynamic that helps other ethical firms (or potential entrants) out of the markets.

As you knew, because it was Deal Book and because of the title of Stewart’s column, the column exemplifies the Deal Book’s deliberate policy of excluding discussions of the ethical and business implications of elite fraud committed with impunity. This is particularly awkward, if logical consistency were a trait Deal Book embraced, given the first sentence of Stewart’s column. “If Steve Jobs were alive today, should he be in jail?” Answering the question “should” inherently requires a discussion of ethics. Stewart, however, is simply being coy – his article never discusses or answers the question he describes as “the provocative question being debated in antitrust circles….” Nor does Stewart ask why that question is being debated “in antitrust circles” rather than in the high tech industry.

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