
Simply flipping the switch and giving derivatives the same treatment as other contracts in bankruptcy could break the impasse on derivatives regulation. With bankruptcy as a more effective backstop for financial institutions in distress, lawmakers wouldn’t need to force every derivative onto an exchange. And if the framework left enough flexibility in the derivatives market for both plain vanilla and more specialized contacts, there would be less need for the financial services industry to fight reform tooth and nail.
Perhaps best of all, these simple changes would reduce the need for bailouts. If Bear Stearns or AIG had been able to stop their derivatives creditors from demanding collateral or cancelling their contracts by filing for bankruptcy, there would have been much less reason for regulators to step in with a taxpayer bailout.
Giving special treatment to certain creditors during bankruptcy and/or allowing them the power to demand payment from the bankrupt debtor defeats the purpose of the bankruptcy process. Such a situation has already left taxpayers holding the bill. So maybe we should seriously consider treating derivatives the same as other creditors during bankruptcy.