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Di Lucido, Katherine and Tabor, Nicholas and Zhang, Jeffery, Fenceposts Without a Fence (August 28, 2022). Vanderbilt Law Review, Forthcoming, U of Michigan Law & Econ Research Paper 22-032, Available at SSRN: https://ssrn.com/abstract=4202930

Abstract

Banking organizations in the United States have long been subject to two broad categories of regulatory requirements. The first is permissive: a “positive” grant of rights and privileges, typically via a charter for a corporate entity, to engage in the business of banking. The second is restrictive: a “negative” set of conditions on those rights and privileges, limiting conduct and imposing a program of oversight and enforcement, by which the holder of that charter must abide. Together, these requirements form a legal cordon, or “regulatory perimeter,” around the U.S. banking sector.

The regulatory perimeter figures prominently in several ongoing policy debates, from the treatment of stablecoins and other crypto-assets, to the role of Big Tech in finance. However, the perimeter itself is ill-defined and often misunderstood. To clarify it, this Article situates the regulatory perimeter in the longer historical arc of American banking, from the colonial era to the present. This Article identifies a new pattern behind changes to the nature, shape, and position of the perimeter—from outside-in pressure, to inside-out pressure, to reform and expansion. The Article also pinpoints a shift, decades old but previously neglected, in the design of regulatory categories and the distribution of responsibility between Congress and the executive branch. Put together, these trends have created a regulatory perimeter that is broader, more complex, and arguably more permeable than at any point in its history—fenceposts without a fence.

Disciplines

Antitrust and Trade Regulation | Finance and Financial Management | Law and Economics

Date of this Version

2022

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