Why Supervise Banks? The Foundations of the American Monetary Settlement

Menand, Lev

doi:10.2139/ssrn.3421232

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Why Supervise Banks? The Foundations of the American Monetary Settlement

74 Vanderbilt Law Review 951

70 Pages Posted: 17 Jul 2019 Last revised: 8 Aug 2022

See all articles by Lev Menand

Lev Menand

Columbia University - Law School

Date Written: October 17, 2019

Abstract

Administrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue.
Today, supervision is under threat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. Recently, the critique has turned legal. Supervision’s skeptics draw on a uniform, flattened view of administrative law to argue that supervision is inconsistent with norms of due process and transparency. These arguments erode the intellectual and political foundations of supervision. They also obscure its distinguished past and deny its continued necessity.
This Article rescues supervision and recovers its historical pedigree. It argues that our current understanding of supervision is both historically and conceptually blinkered. Understanding supervision requires understanding the theory of banking motivating it and revealing the broader institutional order that depends on it. This Article terms that order the “American Monetary Settlement” (“AMS”). The AMS is designed to solve an extremely difficult governance problem—creating an elastic money supply. It uses specially chartered banks to create money and supervisors to act as outsourcers, overseeing the managers who operate banks.
Supervision is now under increasing pressure due to fundamental changes in the political economy of finance. Beginning in the 1950s, the government started to allow nonbanks to expand the money supply, devaluing the banking franchise. Then, the government weakened the link between supervision and money creation by permitting banks to engage in unrelated business activities. This transformation undermined the normative foundations of supervisory governance, fueling today’s desupervisory movement. Desupervision, in turn, cedes public power to private actors and risks endemic economic instability.

Keywords: Bank Supervision, Banking Law, Financial Institutions, Financial Regulation, Money, Monetary System

JEL Classification: E42, E44, E50, E58, G01, G18, G20, G21, G23, G28, N21, N22

Suggested Citation: Suggested Citation

Menand, Lev, Why Supervise Banks? The Foundations of the American Monetary Settlement (October 17, 2019). 74 Vanderbilt Law Review 951, Available at SSRN: https://ssrn.com/abstract=3421232 or http://dx.doi.org/10.2139/ssrn.3421232