
Contents
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I. Introduction I. Introduction
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II. A Preliminary Note on Regulatory Perimeters II. A Preliminary Note on Regulatory Perimeters
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III. Sources of Overlapping Fiduciary Duties III. Sources of Overlapping Fiduciary Duties
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A. Coextensive Common Law Requirements A. Coextensive Common Law Requirements
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1. Contracts with Explicit Invocation of Fiduciary Obligations 1. Contracts with Explicit Invocation of Fiduciary Obligations
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2. Implicit Fiduciary Duties Arising under Contract 2. Implicit Fiduciary Duties Arising under Contract
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3. Overlaps from the Law of Agency 3. Overlaps from the Law of Agency
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B. Fiduciary Duties Arising under Open-Ended Provisions of Regulatory Statutes B. Fiduciary Duties Arising under Open-Ended Provisions of Regulatory Statutes
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C. Statutes Establishing Explicit Fiduciary Standards C. Statutes Establishing Explicit Fiduciary Standards
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IV. Challenges of Overlapping Fiduciary Duties IV. Challenges of Overlapping Fiduciary Duties
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A. The Scope of the Fiduciary Duty A. The Scope of the Fiduciary Duty
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B. The Intensity of the Fiduciary Duty B. The Intensity of the Fiduciary Duty
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C. The Content of Fiduciary Duties C. The Content of Fiduciary Duties
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1. Rules of Conduct 1. Rules of Conduct
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I. Conflicted Compensation I. Conflicted Compensation
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II. Know Your Securities Requirements II. Know Your Securities Requirements
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2. Disclosure and Consent 2. Disclosure and Consent
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I. Simple Disclosure Requirements I. Simple Disclosure Requirements
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II. Disclosure Plus Consent II. Disclosure Plus Consent
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III. Disclosure and Consent Requirements That Approximate Rules of Conduct III. Disclosure and Consent Requirements That Approximate Rules of Conduct
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3. Fiduciary Duties That Devolve into Procedural Requirements 3. Fiduciary Duties That Devolve into Procedural Requirements
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D. Interactions between Fiduciary Duties and Regulatory Requirements D. Interactions between Fiduciary Duties and Regulatory Requirements
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1. Codification of Fiduciary Duties into Regulatory Requirements 1. Codification of Fiduciary Duties into Regulatory Requirements
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2. Fiduciary Duties beyond Regulatory Requirements 2. Fiduciary Duties beyond Regulatory Requirements
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3. Fiduciary Duties within a Detailed Statutory Structure 3. Fiduciary Duties within a Detailed Statutory Structure
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V. Conclusion V. Conclusion
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Acknowledgments Acknowledgments
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45 Fiduciary Law and Financial Regulation
Get accessHowell E. Jackson is James S. Reid, Jr. Professor of Law at Harvard Law School.
Talia B. Gillis is the John M. Olin Fellow for Empirical Law and Finance at Harvard Law School.
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Published:09 May 2019
Cite
Abstract
This chapter explores the application of fiduciary duties to regulated financial firms and financial services. At first blush, the need for such a chapter might strike some as surprising in that fiduciary duties and systems of financial regulation can be conceptualized as governing distinctive and nonoverlapping spheres: fiduciary duties police private activity through open-ended, judicially defined standards imposed on an ex post basis, whereas financial regulations set largely mandatory, ex ante obligations for regulated entities under supervisory systems established in legislation and implemented through expert administrative agencies. Yet, as the chapter documents, fiduciary duties often do overlap with systems of financial regulation. In many regulatory contexts, fiduciary duties arise as a complement to, or sometimes substitute for, other mechanisms of financial regulation. Moreover, the interactions between fiduciary duties and systems of financial regulation generate a host of recurring and challenging interpretative issues. The chapter explores the reasons fiduciary duties arise so frequently in the field of financial regulation and provides a structured account of how the principles of fiduciary duties interact with the more rule-based legal requirements that characterize financial regulation. As grist for this undertaking the chapter focuses on a set of roughly two dozen judicial decisions and administrative rulings to illustrate its claims.
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