First off, you completely failed to address bank execs obligations to their share holders.
To be honest, I didn't think it quite relevant. I suppose that one could argue that the banks' decision to let a huge notational amount of risk pile up on their balance sheet might be a a violation of the duty of care. The duty of care, however, is pretty deferential to management -- as evidenced by the business judgment rule -- and, moreover, I think management could also contend that, under modern portfolio theory, individual shareholders shouldn't have minded the increased risk being assumed because proper diversification would mitigate the losses they suffered.
Perhaps shareholders could also bring a duty of loyalty claim but, again, I think that might be even more of a stretch than the duty of care. I do think there might be some grounds for a duty of care claim -- particularly at those banks where management didn't really understand the operation and exposures associated with participating in the CDO market -- but, as I mentioned before, the duty of care is relatively deferential to management.
They set the standards, and ignore their own standards when it suits them, particularly when they've achieved capture of both their regulators and the ratings agencies.
I agree that the manner and amount of compensation rating agencies received in the context of derivatives and other securitized instruments is hard to justify and created clear incentives for the rating agencies to not properly grade products. Even here, however, I would contend that the investors of the products were big boys and girls and had the opportunity to examine the pool of assets that comprised any securitized offering.
In the modern scheme of finance, they're also allowed to sell a class of products, say sub prime based MBS, out the front door and to bet even bigger against that same class of products in synthetic derivatives out the back door, if not against their own product specifically. That also happened a lot, and just so long as certain technicalities were observed, was and remains perfectly legal.
In the first instance, I think this reflects the modern regulatory regime permits banks to act as brokers (acting as an agent on behalf of the principal, their client) and dealers (banks acting on their behalf. Hence, the need to hyphenate the two into broker-dealer. Moreover, this hasn't been a modern development and this feature of banking was retained during the '30s even as the regulatory regime was changing in other significant ways during that period. I don't think this approach is necessarily flawed as it is possible for broker-dealers to properly firewall the two arms of their operations so that the one isn't unduly influencing the other.
With regard to banks buying synthetic products before the crash, I have a few thoughts that I think militate against a finding that the banks engaged in some sort of impropriety. First, to the extent that the banks were managing their own credit exposure, I see no problem -- indeed, I think it highly prudent -- for a bank to limit its own exposure to one of its investment through the use of hedge and derivatives. If a bank were highly exposed to CDOs based on residential mortgages -- either because the bank invested in those instruments for their own account or were forced to keep the super-senior tranche of the CDO on their books because they couldn't find a customer for that portion of the CDO -- then it is only prudent that the banks diversify away that risk through synthetic CDOs and other instruments. Indeed, if only Bear had taken the same diversification strategy as Goldman, the entire mess of the past three years might have been avoided or, at the very least, greatly minimized.
Second, I don't think that the banks' decision to sell synthetic CDOs suggests that the banks were pulling a fast one on their clients. In the first instance, synthetic CDOs, by their very structure, implies that one party is bullish on the underlying assets while the other is bearish. Any party going long on a synthetic know, without a shadow of a doubt, that there is a counter-party who thinks the assets are over-valued or will default. If the investors didn't know this, I think it suggests that the investor was ill-suited for the task. Moreover, even in those situations where the broker-dealer wasn't actively taking sides in the synthetic deal and was merely facilitating it -- say Goldman and Abacus -- there is some question whether there was impropriety. Specifically, from an economic standpoint Goldman, in the case of Abacus, was purchasing a pool of assets from Paulson and then selling those assets to the Abacus investors. Sure, this result was achieved through the use of modern financial products but, from a functional perspective, that it what happened. Given that there would have been no defects with such an arrangement, I think it is placing form over substance to suggest that there is an impropriety in the one but not the other. I think this is especially true here because the fact that the parties used a synthetic CDO meant that the direct link I posited going from Paulson->Goldman->Note Purchasers was attenuated as there was another independent firm, ACA Capital, that actually selected the assets to comprise the pooled assets for the synthetic CDO. So I think there is even less of a case for impropriety when the direct link is severed by the inclusion of another party.
Of course, if the banker believed the securities to be of the quality he and his fellows represented them to be to investors, he wouldn't do that.
It is not uncommon for the clients of broker-dealers to take different views as to the value of assets; this is true whether the broker-dealer is acting as a broker or as a dealer. Limiting ourselves to vanilla equity securities, when one party sells they are essentially betting the value will decline while the purchaser is betting the value will increase. Indeed, this differentiation of value is what is necessary for trading in almost every sort of financial instrument whether they be traditional equities or more complex securitized products.
Moreover, the clients at issue here were not Grandma and Grandpa but rather were large, sophisticated investors. They had the means and, one would hope, the financial acumen to look at the underlying assets and make a determination as to price of the instrument. As such, they knew, as a matter of principle, that the counter-party to the synthetic CDO notes they were purchasing thought the value of the underlying assets was going to decline.
Of course govt played a part, particularly the Bush Admin- they touted the whole thing highly, rode it to re-election 2004, much preferred that their regulators serve as facilitators & cheerleaders, even demanded that GSE's take on more "affordable" loans to meet the quotas that would trigger executive bonuses, and we all know how that plays out.
If you want to assign blame to one party or even one administration, I don't have the time nor, frankly, even the desire to respond. I will simply say, however, that it is a gross simplification that distorts the facts and propagation of such a simplification can only be informed by a desire to craft a false narrative wherein an otherwise complex and unsatisfying series of events in turned into a mere morality tale.