Only laws and political will can stop a rerun of 2008

The global financial system came to the edge of ruin during the 2008 financial crash. Despite the enormity of the political and economic problems caused by the crash, fundamental reforms have not occurred, and many of the same dangers – cheap credit, unfettered capital, reckless behaviour – lurk again in 2016. So what needs to be done to reform ‘Big Finance’, and what role can the law play?

A public event, hosted by The City Law School, discussed this issue in detail. The anthropologist and Guardian journalist Joris Luyendijk – recent author of Swimming with Sharks – My Journey into the World of Bankers – recounted his experiences of interviewing more than 200 people working in the City of London, and outlined what he learned about the causes of the 2008 crash.

For Mr Luyendijk, blaming the bankers for their greed is a waste of time – after all, the current financial system provides bankers with perverse incentives, and any person would struggle to act ethically in this context. Moreover, financial products are highly complex, capitalism is inherently unstable and crashes will always happen. These are the inevitable problems that come once we accept that risk is a necessary part of finance.

But the crucial problem of ‘too big to fail’ is not inevitable – it can be solved. To do this it is necessary to do two relatively straightforward things:

(i) break up the largest banks into entities that can be allowed to fail when a crash happens, that is, bring back a measure of regulation similar to the US Glass-Steagall Act repealed during the administration of then US President Bill Clinton; and

(ii) remove the perverse incentives and moral hazards that currently exist within Big Finance, so that if traders or financiers decide to take large risks, they know that if the risks pay off, they will be rewarded through a bonus – but if they do not pay off, there will be a measure of personal responsibility in the form of a financial penalty, such as loss of bonus, or a fine in some circumstances.

Dr Giuliano Castellano, of the University of Warwick Law School, discussed the legal reforms that have been considered and debated post-2008, as well as what the law’s impact on finance is likely to be in the future. Dr Castellano noted that using the law to bring in criminal penalties could be counter-productive, because in cases of financial fraud or misrepresentation, proving intent is always difficult. Moreover, the law and lawyers are complicit in the current financial system, and smart lawyers will always try to find a way to get around the latest piece of regulation. Yet, regarding Mr Luyendijk’s recommendations, Dr Castellano has acknowledged that the law can play an important role in enacting both the above reforms – but what is required is political will.

In the global economy, capital moves abroad very easily, whereas governments act on a national or regional basis. The combined effect of the power of financial lobbyists and fear of capital flight restricts politicians’ ability to act. Only a strong political movement across large regions of the world – the EU, North America, East Asia – would be able to counteract these forces, and at present such a force does not exist.