Reflection on LL.M. Program at Harvard Law School
It is hard to believe that in writing this reflection I have not only completed my time in the classroom at Harvard Law School but have also formally graduated from the LL.M. program, marking the culmination of my academic career to date and the attainment of a longstanding personal ambition. It is fair to say that none of this would have been possible without the support of the BFSLA and its Scholarship, in recognition of which I am immensely and sincerely grateful. That support not only brought to me to Harvard but allowed me to positively thrive. I have been fortunate enough to complete the Harvard LL.M. program having received honours in all of my graded subjects, as well as Dean’s Scholar Prizes in the courses of Regulation of Financial Institutions and U.S. Income Taxation.
INDEPENDENT RESEARCH & WRITING
As I noted in my reflection on the Fall & Winter semesters of the LL.M. program, a central aspect of my time at Harvard has been the pursuit of an independent research & writing project. Under the supervision of Prof. Howell Jackson, my project set out to explore the issue of prescriptive detail in the incorporation of fiduciary obligations into regimes for the regulation of financial advice. The degree of precision and detail with which to articulate legal commands is a fundamental design issue that besets financial regulation more generally, often framed in terms of a debate between prescriptive “rules” and more broadly articulated “standards”. This question of precisional optimality has long been a focus of the law & economics literature in the United States, parsed through the framework of a cost-benefit analysis of the differing approaches to the articulation of legal commands.
The core focus of my paper was on the implications of the conceptual nature and origins of fiduciary obligations for the question of precisional optimality in the particular context of the incorporation of such obligations into regimes for the regulation of financial advice. In this regard, my paper argued that failure to appreciate the fundamental importance of prophylactic breadth for the efficacy of fiduciary obligations may give rise to approaches to regulatory implementation which are under-inclusive and fail to deliver the very social benefits sought to be attained from the incorporation of fiduciary obligations into regimes for the regulation of financial advice. With this in mind, my paper developed a framework of design approaches evincing different compromises between the benefits of broad prophylactic articulations of fiduciary obligations and best interest standards, and the certainty and guidance of more detailed prescriptive specifications of required conduct. The best interest standard imposed in Australia by the Future of Financial Advice reforms provided one example of a dualistic approach to the implementation of fiduciary obligations and best interest standards in developing my framework, via its combination of a broad, overarching best interest standard in the provision of financial advice with a more precisely specified rule-like safe harbour. This framework then allowed me to conduct a preliminary appraisal of the “Regulation Best Interest” recently proposed by the Securities & Exchange Commission in the U.S., which adopts a conceptual structure similar to that adopted in Australia under the Future of Financial Advice reforms. Having received an honours grade for my writing project, I am working towards publication of a refined version of my paper.
SPRING COURSEWORK STUDIES
During the spring semester, I undertook a number of subjects to complete the coursework requirements of the Harvard LL.M. program. One of the requirements of the LL.M. program at Harvard is that all students take one course in core or basic U.S. law. In satisfaction of this requirement, I completed a course on U.S. income taxation taught by Prof. Howard Abrams, a leading expert on partnership and corporate taxation. Given the recent passage of the Tax Cuts and Jobs Act of 2017, making a wide range of changes to the Internal Revenue Code, this proved to be an interesting and intellectually challenging time to study the U.S. income tax system. I also participated in a seminar, mediated by Prof. Jeanne Charn, on the contemporary issues in terms of the financial needs of low income households. As part of this seminar, I completed a research paper on the post-Financial Crisis recovery of the U.S. credit card market, with a particular focus on trend differentials between the prime and non-prime categories of credit card account holders, the re-emergence of securitization of credit card receivables, and the impacts of the Credit Card Accountability Responsibility and Disclosure Act of 2009 on access to credit in the U.S. Perhaps the highlight of my coursework in the spring semester was the course “Advanced Topics in Financial Regulation” taught by Prof. Daniel Tarullo, former member of the Board of Governors of the United States Federal Reserve Board. This course focused on post-Financial Crisis and on-going developments in capital regulation, quantitative liquidity regulation, and macro-prudential regulation. Although this course delved into the details of Basel III and subsequent reforms, I found this course particularly valuable in its attention to developing a higher level conceptual and analytic framework for understanding micro- and macro-prudential regulation.
My time at Harvard has truly been invaluable in expanding my substantive legal knowledge, developing new perspectives on regulatory design, and furthering the acuity of my thinking on contemporary issues in financial regulation. I am now looking forward to further contributing to the legal literature in Australia, now better equipped to incorporate U.S. comparative perspectives into my writings. I will be remaining in the U.S. for the time being, having secured a position as an associate in one of the most pre-eminent financial regulation groups in the U.S. I have no doubt this experience will only serve to further develop my thinking and ability to contribute to discourse on financial regulation in Australia in the future. I remain immensely grateful to the BFSLA for its support of my LL.M. studies at Harvard Law School.