quarta-feira, 29 de abril de 2009

A questão da regulação dos bancos nos Estados Unidos

Prof Farlei Martins, doutorando de direito da puc-rio, da Ucam envia a seguinte notícia:

The New York Times
April 29, 2009
Justices Hear Arguments on Bank Regulation
WASHINGTON — The Supreme Court heard arguments on Tuesday in a case that
could change the way big banks are regulated.

In the case, Cuomo v. the Clearing House Association, federal and state
regulators have squared off over which part of the government should serve
as the nation’s watchdog for national banks. The case began four years ago,
when Eliot Spitzer, New York’s attorney general at the time, questioned why
some national banks seemed to be making a disproportionate number of
high-interest home mortgage loans to black and Hispanic borrowers.

The fight involves fundamental issues of federalism and consumer protection,
and, should the court decide for Mr. Cuomo’s position, could open new powers
of regulation to the states.

Mr. Spitzer was trying to enforce New York’s antidiscrimination laws, but he
ran up against federal precedent that tended to leave regulation of national
banks to the Treasury Department, and, specifically, the Office of the
Comptroller of the Currency. A consortium of banks sued Mr. Spitzer, and so
did the Office of the Comptroller of the Currency.

The banks and federal regulators argued that letting state officials
regulate the banks would force the financial institutions to deal with a
national patchwork of conflicting regulations. States can make laws
concerning the banks’ practices, they argued, but only the federal
government should enforce those laws.

That argument appeared to resonate with Justice Stephen G. Breyer, who
pictured 51 regulators — one from each state and the federal government —
poring over a bank’s books for statistical patterns of differentiation in
setting interest rates. “As long as, most unfortunately, income is
correlated with race, with minorities being toward the bottom, of course
such statistical disparities will exist, some legitimate, some not,” he
said. In such analysis, “reasonable people will often differ,” he noted.

Judge Ruth Bader Ginsburg, however, called the unusual arrangement depicted
by the government as “passing strange,” while Justice Antonin Scalia called
it “weird.” He asked: “What incentive does the federal government have to
enforce state law? It has so much spare time after enforcing federal law
that it’s going to be worrying about state law?”

A federal district judge in 2005 and the United States Court of Appeals for
the Second Circuit in 2007 ruled against New York and for federal

But much has changed since Mr. Spitzer began his inquiry. For one thing, he
is no longer attorney general; Andrew M. Cuomo has succeeded him. And, at
the same time, the nation has been shaken by financial scandal and failure
in ways that have led many to question the sagacity and effectiveness of the
regulatory structure. A brief filed by the 49 other state attorneys general
argues, “The recent (and continuing) fallout from the subprime lending
debacle demonstrates the need for more oversight and consumer protection
enforcement in the area of mortgage lending.”

The Office of the Comptroller of the Currency, the brief states, “has no
experience in enforcing state public protection laws, has a minimal track
record in consumer protection and has no accountability to the citizens of
any state.”

James E. Tierney, director of the National State Attorneys General Program
at Columbia Law School, said that the federal regulators’ job was to promote
“bank fiscal soundness and not protection of consumers,” and that battling
fraud in mortgage lending was an area where state attorneys general had long
excelled. “They got it first,” Mr. Tierney said, “and they got it right.”

A brief filed by all the Comptrollers of the Currency since 1973, however,
takes a different view. The comptroller’s office, according to the brief,
works quietly with banks to address consumer issues in a “prophylactic” way,
and “uses the wide range of its supervisory powers in an effort to alert
national banks of potential noncompliance that poses risks to consumers and
to ensure that they are addressed as early as possible.”

The threat of action by the federal regulators, the comptrollers stated, is
“a significant incentive for national banks to address any compliance issues
before they become serious problems.” And when such gentle measures fail,
the comptrollers wrote, the agency “does not hesitate to take aggressive
enforcement action against national banks.”

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