Abstract

Richard A. Posner's two books on the financial crisis focus on possible macroeconomic (Keynesian) causes of it, neglecting legal causes that would have had only microeconomic effects, yet could have been responsible for the crisis. Specifically, Posner accepts too readily the conventional wisdom that banks’ leverage levels, hence their capital cushions, were deregulated; this ignores Basel I, Basel II, and the Recourse rule, which internationally and (in the last case) in the United States minutely regulated not only leverage levels but the composition of banks’ assets. These regulations penalized banks for making business loans in comparison to mortgage loans, and it further penalized them for keeping mortgage loans rather than selling them for securitization and then buying back the “senior” tranches of the resulting mortgage-backed securities. These regulations may explain the overconcentration of mortgage risk in the banks, and thus the financial crisis.