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Monday, March 05, 2007



A good question, by which I mean that I'm not sure of the answer (which is what people often seem to mean by that phrase). Because the Guidance mentions the phrase "safety and soundness" and regulators examine banks to insure that their loans comply with safety and soundness rules, it probably means that regulators will take the Guidance into account when conducting those examinations, and that lenders that fail to comply with the Guidance may be found to have acted unsafely and unsoundly. But I don't know enough about banking law to be certain of that, or to know whether the Guidance has any other binding effect--but I imagine it would have a persuasive impact generally, and might inspire negligence per se arguments.


In your view, will the guidance have the force of law if it is finalized? It may bind the agencies (to the extent that it imposes any obligations on them), but will it bind the public, that is, the industries targeted by the guidance?

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