No “Market” for Truth: The Weaknesses of Free Speech-Based Defenses to Credit Rating Industry Liability

Authors

Andy Carr

Abstract

Credit rating agencies are essential components of the global financial systems. The major CRAs primarily serve the financial systems as “gatekeepers,” in that their ratings determine whether a financial instrument is “investment grade” under federal and state laws, and as information-facilitators for the complicated instruments being bought and sold within the system. Because of their systemic significance, CRAs faced especially harsh scrutiny in the aftermath of the financial crisis and Great Recession a decade ago. Initial public scrutiny was followed by waves of litigation which resurfaced long-dormant questions about the CRAs’ exposure to liability and decades-old defenses of their rating “opinions.” Accordingly, this Note reexamines the nexus between the CRAs’ profound importance as financial institutions and their defenses against claims for liability in fueling the last recession, focusing especially on their decades-old claims of First Amendment protections–a resurgent issue in recent litigation in both state and federal courts around the country.

Recommended Citation

Andy Carr, No “Market” for Truth: The Weaknesses of Free Speech-Based Defenses to Credit Rating Industry Liability, 46 Hastings Const. L.Q. 245 (2018).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol46/iss1/7