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During the recent housing boom, private-label securitization without regulation was unsustainable. Without regulation, securitization allowed mortgage industry actors to gain fees and to put off risks. The ability to pass off risk allowed lenders and securitizers to compete for market share by lowering their lending standards, which activated more borrowing. Lenders who did not join in the easing of lending standards were crowded out of the market. Meanwhile, the mortgages underlying securities became more exposed to growing default risk, but investors did not receive higher rates of return. Artificially low risk premia caused the asset price of houses to go up, leading to an asset bubble and creating a breeding ground for market fraud. The consequences of lax lending were covered up and there was no immediate failure to discipline the markets.

The market might have corrected this problem if investors had been able to express their negative views by short selling mortgage-backed securities, thereby allowing fundamental market value to be achieved. However, the one instrument that could have been used to short sell mortgage-backed securities-the credit default swap-was also infected with underpricing due to lack of minimum capital requirements and regulation to facilitate transparent pricing. As a result, there was no opportunity for short selling in the private-label securitization market. The paper ends with a proposal for countercyclical regulation to prevent a race to the bottom during the height of the business cycle.


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8 Sep 2022
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  • Subject
    • Administrative Law

    • Banking and Finance Law

    • Securities Law

  • Journal title
    • Connecticut Law Review

  • Pagination
    • 1327-1375

  • Date submitted

    8 September 2022