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Paul B. Miller - One of the best experts on this subject based on the ideXlab platform.
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The Morality of Fiduciary Law
2020Co-Authors: Paul B. MillerAbstract:Recent work of Fiduciary theory has provided conceptual synthesis requisite to understanding core Fiduciary principles and the structure of Fiduciary liability. However, normative questions have received only sporadic attention. What values animate Fiduciary law? How does, or ought, Fiduciary law prove responsive to them? Where in other areas of private law theory – notably, tort theory – pioneering scholars went directly at normative questions like these, Fiduciary theory has been exceptional for the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several distinct forms of relationship arising in markedly different settings. In this article, I develop a framework for analysis of the morality of Fiduciary law. The framework accomplishes four things. First, it situates questions about the morality of Fiduciary law within the context of the general jurisprudential literature on the nature of law and its normativity. Second, it explains the sense in which Fiduciary law is normatively complex by virtue of being structurally biplanar, with general equitable principles (duty-imposing rules) overlain upon legal and equitable principles (including, notably, power-conferring rules) that define and enable legal forms of relationship characterized as Fiduciary in equity. Third, it distinguishes the general morality of Fiduciary duties from the special morality of Fiduciary relationship types. Fourth, and finally, it provides an overview of loci of value in Fiduciary relationships, canvassing considerations of general and special morality that give salience to the interests of parties, third parties and the public in rules that enable and constrain the performance of Fiduciary mandates.
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Against Fiduciary Constitutionalism
SSRN Electronic Journal, 2020Co-Authors: Samuel L. Bray, Paul B. MillerAbstract:A growing body of scholarship draws connections between Fiduciary law and the Constitution. In much of this literature, the Constitution is described as a Fiduciary instrument that establishes Fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of Fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve Fiduciary law—mistakes about how to identify Fiduciary relationships, about the content and enforcement of Fiduciary duties, and about the relationship of Fiduciary status to good faith. Still other failings sound in constitutional law—linguistic confusions and an impossible attempt to locate the genre of the Constitution in the categories of private Fiduciary law. These criticisms suggest fundamental weaknesses in the new and increasingly influential attempt to develop Fiduciary constitutionalism.
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introduction the oxford handbook of Fiduciary law
2019Co-Authors: Evan J Criddle, Paul B. Miller, Robert H. SitkoffAbstract:In recent years, the study of Fiduciary law has undergone a paradigm shift. Rather than treat Fiduciary principles as subsidiary elements of legal fields, such as trust law or corporate law, a burgeoning group of scholars has undertaken to study Fiduciary law as a coherent general field of study that encompasses aspects of both private and public law. Case law and academic commentary have progressed to the point that it is now possible to generate a detailed mapping of the field. To this end, the newly published Oxford Handbook of Fiduciary Law provides a near-encyclopedic survey of the terrain, focusing primarily on U.S. jurisprudence but also incorporating perspectives from other legal traditions. In its breadth and depth of coverage, the Handbook stands alone as a uniquely authoritative guide to the current state of the law and scholarship in the field. This essay, which is the Introduction to the Handbook, explores Fiduciary law’s emergence as a general field of study and explains the Handbook’s ambitious contributions to the field. These contributions are grouped thematically into four parts. First, the Handbook surveys Fiduciary principles across diverse contexts, ranging from agency law and the law of investment advice, to family law and the law of lawyering, to public offices and public international law. Second, the Handbook identifies and synthesizes several fundamental principles of Fiduciary law that apply across these contexts, including the core Fiduciary duties of loyalty and care. Third, the Handbook explores how Fiduciary principles have developed across time and in different legal traditions around the world. Lastly, the Handbook considers how different legal theories, interdisciplinary approaches, and social institutions may contribute to the academic study and development of Fiduciary law. The Handbook thus furnishes a single source to which readers can turn for guidance on Fiduciary principles across a host of substantive fields, jurisdictions, and epochs.
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The Identification of Fiduciary Relationships
The Oxford Handbook of Fiduciary Law, 2019Co-Authors: Paul B. MillerAbstract:This chapter in the forthcoming Oxford Handbook of Fiduciary Law provides synthetic analysis of the law on Fiduciary relationships, focusing on the identification of Fiduciary relationships and Fiduciary relationship formation and termination. The chapter discusses status- and fact-based methods of identifying Fiduciary relationships, as well as analogical and definitional variants on these methods. The chapter concludes by highlighting the increasing convergence on powers-based definitions of the Fiduciary relationship, and by explaining the merits of definitional reasoning.
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Fiduciary government provenance promise and pitfalls
2018Co-Authors: Evan J Criddle, Andrew S. Gold, Evan Foxdecent, Sung Hui Kim, Paul B. MillerAbstract:The idea that the state is a Fiduciary to its people has a long pedigree — ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents. Public Fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. This essay, which serves as an introduction to a new volume on “Fiduciary Government” (CUP 2018), contributes to the growing renaissance of public Fiduciary theory. Drawing on the volume’s groundbreaking chapters, the essay explains how Fiduciary principles yield new insights into a variety of important topics in legal and political theory. These topics include the proper roles of public officials and judges; the validity and operation of positive rights; and the concepts of political representation, legitimacy, and obligation. The essay also presents several important critiques of public Fiduciary theory.
Ethan J. Leib - One of the best experts on this subject based on the ideXlab platform.
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Fiduciary Principles and Public Offices
The Oxford Handbook of Fiduciary Law, 2019Co-Authors: Ethan J. Leib, Stephen R. GaloobAbstract:This chapter examines how Fiduciary principles apply to public offices, focusing on what it means for officeholders to comport themselves to their respective public roles appropriately. Public law institutions can operate in accordance with Fiduciary norms even when they are enforced differently from the remedial mechanisms available in private Fiduciary law. In the public sector, Fiduciary norms are difficult to enforce directly and the Fiduciary norms of public office do not overlap completely with the positive law governing public officials. Nevertheless, core Fiduciary principles are at the heart of public officeholding, and public officers need to fulfill their Fiduciary role obligations. This chapter first considers three areas of U.S. public law whose Fiduciary character reinforces the tenet that public office is a public trust: the U.S. Constitution’s “Emoluments Clauses,” administrative law, and the law of judging. It then explores the Fiduciary character of public law by looking at the deeper normative structure of public officeholding, placing emphasis on how public officeholders are constrained by the principles of loyalty, care, deliberation, conscientiousness, and robustness. It also compares the policy implications of the Fiduciary view of officeholding with those of Dennis Thompson’s view before concluding with an explanation of how the application of Fiduciary principles might differ between public and private law settings and how public institutions might be designed or reformed in light of Fiduciary norms.
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Fiduciary Loyalty, Inside and Out
2018Co-Authors: Stephen R. Galoob, Ethan J. LeibAbstract:The duty of loyalty is central to Fiduciary law. But what does “loyalty” mean? Some theorists and judges (“moralists”) see a deep connection between Fiduciary loyalty and the ordinary notion of loyalty. Others (“amoralists”) see no meaningful connection between the demands of loyalty that apply to fiduciaries and those that apply in moral life. This long-running debate parallels similarly fundamental disputes in contract law about the relationship between “promise” and contract, as well tort law debates about the whether “wrong” or “duty” should be understood in moralized terms. In each of these cases, the question is whether the legal concept essentially references the moral understanding of the term, or whether the legal concept is wholly independent of its moral analogue. We contend that Fiduciary loyalty, like ordinary loyalty, has an inherently cognitive dimension. Whether a Fiduciary satisfies the demands of loyalty depends, at least in part, on how she deliberates, how her deliberation is connected with her actions, and how sturdy her commitments to her beneficiary are. Both inside the law and out, loyalty makes demands on the inside of the Fiduciary. We call this view cognitivism about Fiduciary loyalty. We show that cognitivism describes ordinary loyalty, and then identify doctrines in corporate law, trust law, agency law, bankruptcy law, and the law governing lawyers to demonstrate that cognitivism provides the best way to understand Fiduciary loyalty. Appreciating the cognitive dimension of Fiduciary loyalty provides a way around the dispute between moralism and amoralism about Fiduciary law. Both moralists and amoralists can appreciate that whether a Fiduciary satisfies the duty of loyalty depends, at least in part, on questions about the Fiduciary’s deliberation, conscientiousness, and commitment to the beneficiary. Cognitivism also has significant implications for resolving a number of open or disputed legal questions, as well as for extending Fiduciary duties to new types of legal relationships.
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Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation
2018Co-Authors: Ethan J. Leib, Jed Handelsman ShugermanAbstract:The idea that public servants hold their offices in trust for subject-beneficiaries and that a sovereign’s exercise of its political power must be constrained by Fiduciary standards – like the duties of loyalty and care – is not new. But we are collecting more and more evidence that the framers of the U.S. Constitution may have sought to constrain public power in ways that we would today call Fiduciary constraints. In this Essay, we find further support for the Fiduciary character of Article II in its command of "faithful execution" by the President -- and we explore some important legal conclusions that follow from Fiduciary constitutionalism. After developing some historical links between private Fiduciary instruments and state and federal constitutions, we opine on what the fact of a Fiduciary constitution may mean for modern issues in constitutional law. First, we argue that Fiduciary constraint has implications for the legal validity of presidential pardons that are not efforts to pursue the public interest. Because the core duty of all fiduciaries is to be loyal to beneficiaries and not to pursue their own self-interest, pardons in derogation of a president’s Fiduciary obligation are invalid. Second, we suggest that when properly conceived as best analogized to a trust instrument, we can both appreciate where the non-delegation doctrine came from and why it is consistent with the original meaning of the Constitution to have a much relaxed rule about delegation today. By way of conclusion, we meditate on how to convert legal conclusions that flow from Fiduciary constitutionalism into remedies that make sense for the potentially sui generis Fiduciary law of constitutional law.
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Fiduciary Political Theory: A Critique
Yale Law Journal, 2016Co-Authors: Ethan J. Leib, Stephen R. GaloobAbstract:“Fiduciary political theory” is a burgeoning intellectual project that uses Fiduciary principles to analyze public law. This Essay provides a framework for assessing the usefulness and limitations of Fiduciary political theory. Our thesis is that Fiduciary principles can be fruitfully applied to many domains of public law. However, other domains are incompatible with the basic structure of Fiduciary norms. In these domains, Fiduciary political theory is less likely to be viable.One contribution of this Essay is to describe the underlying structure of Fiduciary norms. We identify three features of these norms that differentiate them from norms of contract, tort, and criminal law. First, Fiduciary norms impose deliberative requirements: they make specific types of demands on an agent’s deliberation in addition to her behavior. Second, complying with Fiduciary norms requires a special conscientiousness. Living up to a Fiduciary obligation depends not only on how an agent behaves and deliberates, but also on whether she does so for the right reasons. Third, Fiduciary norms impose “robust” demands, which require the Fiduciary to seek out and respond appropriately to new information about the interests of her beneficiaries.We use these insights to assess applications of Fiduciary principles to theories of judging, administrative governance, and international law. A Fiduciary theory of judging can explain certain aspects of the norms of judging better than alternative theories offered by Ronald Dworkin and Judge Richard Posner. The viability of a Fiduciary theory of administrative governance is an open question. Whether this kind of Fiduciary political theory is superior to alternatives (like the instrumentalist theory of administrative governance developed by Adrian Vermeule) turns on a deeper dispute about whether administrative law reflects a culture of justification. Finally, a Fiduciary political theory of international law (like the one defended by Evan Fox-Decent and Evan Criddle) is unlikely to succeed. Fiduciary norms are structurally incompatible with the domain of international law because compliance with international-law norms is a function of how states behave, rather than how they deliberate or why they behave as they do.
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INTENTIONS, COMPLIANCE, AND Fiduciary OBLIGATIONS
Legal Theory, 2014Co-Authors: Stephen R. Galoob, Ethan J. LeibAbstract:This essay investigates the structure of Fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to the possibility of “accidental compliance.” Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, Fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of Fiduciary loyalty is best described by what we call the “shaping” account. This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing Fiduciary obligations. “Contractarianism” configures Fiduciary obligations as a species of contractual duties. The view that we call “proscriptivism” reduces Fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of Fiduciary loyalty.
Stephen R. Galoob - One of the best experts on this subject based on the ideXlab platform.
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Fiduciary Principles and Public Offices
The Oxford Handbook of Fiduciary Law, 2019Co-Authors: Ethan J. Leib, Stephen R. GaloobAbstract:This chapter examines how Fiduciary principles apply to public offices, focusing on what it means for officeholders to comport themselves to their respective public roles appropriately. Public law institutions can operate in accordance with Fiduciary norms even when they are enforced differently from the remedial mechanisms available in private Fiduciary law. In the public sector, Fiduciary norms are difficult to enforce directly and the Fiduciary norms of public office do not overlap completely with the positive law governing public officials. Nevertheless, core Fiduciary principles are at the heart of public officeholding, and public officers need to fulfill their Fiduciary role obligations. This chapter first considers three areas of U.S. public law whose Fiduciary character reinforces the tenet that public office is a public trust: the U.S. Constitution’s “Emoluments Clauses,” administrative law, and the law of judging. It then explores the Fiduciary character of public law by looking at the deeper normative structure of public officeholding, placing emphasis on how public officeholders are constrained by the principles of loyalty, care, deliberation, conscientiousness, and robustness. It also compares the policy implications of the Fiduciary view of officeholding with those of Dennis Thompson’s view before concluding with an explanation of how the application of Fiduciary principles might differ between public and private law settings and how public institutions might be designed or reformed in light of Fiduciary norms.
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Fiduciary Loyalty, Inside and Out
2018Co-Authors: Stephen R. Galoob, Ethan J. LeibAbstract:The duty of loyalty is central to Fiduciary law. But what does “loyalty” mean? Some theorists and judges (“moralists”) see a deep connection between Fiduciary loyalty and the ordinary notion of loyalty. Others (“amoralists”) see no meaningful connection between the demands of loyalty that apply to fiduciaries and those that apply in moral life. This long-running debate parallels similarly fundamental disputes in contract law about the relationship between “promise” and contract, as well tort law debates about the whether “wrong” or “duty” should be understood in moralized terms. In each of these cases, the question is whether the legal concept essentially references the moral understanding of the term, or whether the legal concept is wholly independent of its moral analogue. We contend that Fiduciary loyalty, like ordinary loyalty, has an inherently cognitive dimension. Whether a Fiduciary satisfies the demands of loyalty depends, at least in part, on how she deliberates, how her deliberation is connected with her actions, and how sturdy her commitments to her beneficiary are. Both inside the law and out, loyalty makes demands on the inside of the Fiduciary. We call this view cognitivism about Fiduciary loyalty. We show that cognitivism describes ordinary loyalty, and then identify doctrines in corporate law, trust law, agency law, bankruptcy law, and the law governing lawyers to demonstrate that cognitivism provides the best way to understand Fiduciary loyalty. Appreciating the cognitive dimension of Fiduciary loyalty provides a way around the dispute between moralism and amoralism about Fiduciary law. Both moralists and amoralists can appreciate that whether a Fiduciary satisfies the duty of loyalty depends, at least in part, on questions about the Fiduciary’s deliberation, conscientiousness, and commitment to the beneficiary. Cognitivism also has significant implications for resolving a number of open or disputed legal questions, as well as for extending Fiduciary duties to new types of legal relationships.
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Fiduciary Political Theory: A Critique
Yale Law Journal, 2016Co-Authors: Ethan J. Leib, Stephen R. GaloobAbstract:“Fiduciary political theory” is a burgeoning intellectual project that uses Fiduciary principles to analyze public law. This Essay provides a framework for assessing the usefulness and limitations of Fiduciary political theory. Our thesis is that Fiduciary principles can be fruitfully applied to many domains of public law. However, other domains are incompatible with the basic structure of Fiduciary norms. In these domains, Fiduciary political theory is less likely to be viable.One contribution of this Essay is to describe the underlying structure of Fiduciary norms. We identify three features of these norms that differentiate them from norms of contract, tort, and criminal law. First, Fiduciary norms impose deliberative requirements: they make specific types of demands on an agent’s deliberation in addition to her behavior. Second, complying with Fiduciary norms requires a special conscientiousness. Living up to a Fiduciary obligation depends not only on how an agent behaves and deliberates, but also on whether she does so for the right reasons. Third, Fiduciary norms impose “robust” demands, which require the Fiduciary to seek out and respond appropriately to new information about the interests of her beneficiaries.We use these insights to assess applications of Fiduciary principles to theories of judging, administrative governance, and international law. A Fiduciary theory of judging can explain certain aspects of the norms of judging better than alternative theories offered by Ronald Dworkin and Judge Richard Posner. The viability of a Fiduciary theory of administrative governance is an open question. Whether this kind of Fiduciary political theory is superior to alternatives (like the instrumentalist theory of administrative governance developed by Adrian Vermeule) turns on a deeper dispute about whether administrative law reflects a culture of justification. Finally, a Fiduciary political theory of international law (like the one defended by Evan Fox-Decent and Evan Criddle) is unlikely to succeed. Fiduciary norms are structurally incompatible with the domain of international law because compliance with international-law norms is a function of how states behave, rather than how they deliberate or why they behave as they do.
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INTENTIONS, COMPLIANCE, AND Fiduciary OBLIGATIONS
Legal Theory, 2014Co-Authors: Stephen R. Galoob, Ethan J. LeibAbstract:This essay investigates the structure of Fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to the possibility of “accidental compliance.” Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, Fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of Fiduciary loyalty is best described by what we call the “shaping” account. This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing Fiduciary obligations. “Contractarianism” configures Fiduciary obligations as a species of contractual duties. The view that we call “proscriptivism” reduces Fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of Fiduciary loyalty.
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The core of Fiduciary political theory
Research Handbook on Fiduciary Law, 1Co-Authors: Stephen R. Galoob, Ethan J. LeibAbstract:“Fiduciary political theory” applies norms developed within Fiduciary law to public officials and political institutions. Fiduciary political theorists contend that these Fiduciary norms describe or, at least, offer insights into the political authority of states and other major questions of political morality. However, many Fiduciary political theorists disagree about methodology—specifically, how directly to apply Fiduciary norms to the realm of politics. This chapter has two goals. The first goal is to describe the core of Fiduciary political theory by identifying features of Fiduciary norms (some more familiar than others) that apply in both private law and political contexts. Part I sketches these features, illustrating them by reference to several recent cases in the United States. The second goal is to show that these core features of Fiduciary norms can transcend methodological disagreements among Fiduciary political theorists. In Part II, we briefly describe these disagreements, contending that they threaten to distract attention from the substantial common ground among different Fiduciary political theories. Our analysis, if correct, provides a framework for analyzing the actions of political officials and the structure of political institutions, regardless of how literally one thinks that Fiduciary norms do (or should) apply to the political realm. Bracketing these methodological disagreements provides firmer ground for developing the most distinctive and powerful aspects of Fiduciary political theory as an intellectual enterprise.
Andrew S. Gold - One of the best experts on this subject based on the ideXlab platform.
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The Fiduciary Duty of Loyalty
The Oxford Handbook of Fiduciary Law, 2019Co-Authors: Andrew S. GoldAbstract:This chapter addresses the Fiduciary duty of loyalty. Loyalty is a central concept in Fiduciary law, even as scholars differ on whether we should reason from Fiduciary relationships to loyalty obligations, or the other way around. Nonetheless, the common view across jurisdictions and across theories is that loyalty is vital to Fiduciary relationships. This chapter first provides an overview of the core features of Fiduciary loyalty, with particular emphasis on the no-conflict rules, which have two basic components: a rule against conflicts of interest and a rule against conflicts of duty. It then considers the no-profit rule and how it relates to the rules against conflicts of interest, along with duties of good faith and disclosure and the link between Fiduciary loyalty and other obligations. It also discusses remedies that are generally associated with breach of loyalty, including the disgorgement remedy, as well as specific contexts that modify the effect or scope of Fiduciary loyalty obligations (for example, contractual modifications of legal default rules or cases where there are multiple beneficiaries), and additional factors that affect application of the Fiduciary duty of loyalty. The chapter concludes with an analysis of theories that explain Fiduciary loyalty as a category.
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Fiduciary government provenance promise and pitfalls
2018Co-Authors: Evan J Criddle, Andrew S. Gold, Evan Foxdecent, Sung Hui Kim, Paul B. MillerAbstract:The idea that the state is a Fiduciary to its people has a long pedigree — ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents. Public Fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. This essay, which serves as an introduction to a new volume on “Fiduciary Government” (CUP 2018), contributes to the growing renaissance of public Fiduciary theory. Drawing on the volume’s groundbreaking chapters, the essay explains how Fiduciary principles yield new insights into a variety of important topics in legal and political theory. These topics include the proper roles of public officials and judges; the validity and operation of positive rights; and the concepts of political representation, legitimacy, and obligation. The essay also presents several important critiques of public Fiduciary theory.
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Philosophical Foundations of Fiduciary Law - Philosophical Foundations of Fiduciary Law
2014Co-Authors: Andrew S. Gold, Paul B. MillerAbstract:PART I. Fiduciary RELATIONSHIPS PART II. Fiduciary DUTIES PART III. ECONOMIC THEORY: CONSTRUCTIVE AND CRITICAL PERSPECTIVES PART IV. Fiduciary PRINCIPLES IN CONTEXT: PRIVATE LAW PART V. Fiduciary PRINCIPLES IN CONTEXT: PUBLIC LAW
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The Loyalties of Fiduciary Law
2013Co-Authors: Andrew S. GoldAbstract:Fiduciary theorists broadly agree that a duty of loyalty is fundamental to Fiduciary relationships. They do not agree on a core minimum content of Fiduciary loyalty. Some think that loyalty at the least requires the avoidance of conflicts of interest (and perhaps also conflicts of duties). Others think that loyalty requires a Fiduciary to act in what he or she perceives are the beneficiary’s best interests. Yet others conclude that loyalty amounts to the terms of a hypothetical bargain, in a world of zero transaction costs. Each approach is incorrect, at least when we view Fiduciary law as a whole. This chapter argues that the various conceptions of Fiduciary loyalty are not readily reducible into each other, and that for each of the leading conceptions of Fiduciary loyalty the law provides important counter-examples. It is possible to find common features to Fiduciary loyalty in its many settings, but doing so requires a very thin account of what it is to be loyal. Recognizing the variations in Fiduciary loyalty, however, may tell us something significant about Fiduciary law. This chapter indicates how variable Fiduciary loyalty is, and it offers an initial exploration of why this matters.
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REFLECTIONS ON THE STATE AS Fiduciary
University of Toronto Law Journal, 2013Co-Authors: Andrew S. GoldAbstract:This review article discusses the arguments developed in Sovereignty’s Promise: The State as Fiduciary by Evan Fox-Decent. Sovereignty’s Promise provides a compelling and ground-breaking Fiduciary conception of the state and its agents. As the book indicates, Fiduciary principles can give us valuable insights for constitutional law, administrative law, and statutory interpretation. The book’s Fiduciary account also provides an original theory of political obligation. This article suggests that the theory of political obligation faces significant challenges, at least if Fiduciary principles are to establish a certain type of legitimacy. Even if these challenges are problematic, however, Sovereignty’s Promise offers a powerful argument that the Fiduciary state is more legitimate than a non-Fiduciary alternative.
Robert H. Sitkoff - One of the best experts on this subject based on the ideXlab platform.
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introduction the oxford handbook of Fiduciary law
2019Co-Authors: Evan J Criddle, Paul B. Miller, Robert H. SitkoffAbstract:In recent years, the study of Fiduciary law has undergone a paradigm shift. Rather than treat Fiduciary principles as subsidiary elements of legal fields, such as trust law or corporate law, a burgeoning group of scholars has undertaken to study Fiduciary law as a coherent general field of study that encompasses aspects of both private and public law. Case law and academic commentary have progressed to the point that it is now possible to generate a detailed mapping of the field. To this end, the newly published Oxford Handbook of Fiduciary Law provides a near-encyclopedic survey of the terrain, focusing primarily on U.S. jurisprudence but also incorporating perspectives from other legal traditions. In its breadth and depth of coverage, the Handbook stands alone as a uniquely authoritative guide to the current state of the law and scholarship in the field. This essay, which is the Introduction to the Handbook, explores Fiduciary law’s emergence as a general field of study and explains the Handbook’s ambitious contributions to the field. These contributions are grouped thematically into four parts. First, the Handbook surveys Fiduciary principles across diverse contexts, ranging from agency law and the law of investment advice, to family law and the law of lawyering, to public offices and public international law. Second, the Handbook identifies and synthesizes several fundamental principles of Fiduciary law that apply across these contexts, including the core Fiduciary duties of loyalty and care. Third, the Handbook explores how Fiduciary principles have developed across time and in different legal traditions around the world. Lastly, the Handbook considers how different legal theories, interdisciplinary approaches, and social institutions may contribute to the academic study and development of Fiduciary law. The Handbook thus furnishes a single source to which readers can turn for guidance on Fiduciary principles across a host of substantive fields, jurisdictions, and epochs.
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Fiduciary Principles in Trust Law
The Oxford Handbook of Fiduciary Law, 2019Co-Authors: Robert H. SitkoffAbstract:This book chapter, prepared for the forthcoming Oxford Handbook of Fiduciary Law, canvasses the Fiduciary principles applicable to a trustee of a donative, irrevocable private trust subject. The focus is on prevailing American law. The chapter examines (a) the trigger for finding a trust Fiduciary relationship and the scope of that relationship; (b) the duty of loyalty; (c) the duty of prudence across the distribution, investment, custodial, and administrative functions of trusteeship; (d) other Fiduciary duties in trust law, including the prominent duty of impartiality and the increasingly salient duty to give information to the beneficiaries; (e) the extent to which Fiduciary principles in trust law are mandatory or may be waived by the settlor or by a beneficiary; and (f) the remedies available for a breach of duty by a trustee.
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other Fiduciary duties implementing loyalty and care
2018Co-Authors: Robert H. SitkoffAbstract:This book chapter, prepared for the forthcoming Oxford Handbook of Fiduciary Law, canvasses the Fiduciary duties other than the primary duties of loyalty and care. The core claim is that these other, subsidiary duties are field-specific elaborations of the primary duties of loyalty and care that implement those duties as applied to commonly recurring circumstances within the particular type or kind of Fiduciary relationship. Together, the primary duties of loyalty and care, structured as open-ended standards, and the subsidiary duties, structured as rules or at least more specific standards, provide for Fiduciary governance by a mix of rules, specific standards, and open-ended standards that mitigates the weaknesses of governance entirely by rules or standards alone. Fiduciary law thus improves on the familiar trope of rules versus standards as competing governance strategies. The increased specification provided by the subsidiary duties simplifies application of Fiduciary obligation to cases that fall within their terms. But because the primary duties of loyalty and care remain operative, the specification for recurring matters provided by the subsidiary duties does not provide a roadmap for strategic avoidance behavior. If a Fiduciary acts in a manner that is inimical to the principal’s interests and not addressed by a subsidiary duty, the principal may still invoke the open-ended primary duties of loyalty and care in challenging the Fiduciary’s actions.
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An Economic Theory of Fiduciary Law
2013Co-Authors: Robert H. SitkoffAbstract:This chapter restates the economic theory of Fiduciary law, making several fresh contributions. First, it elaborates on earlier work by clarifying the agency problem that is at the core of all Fiduciary relationships. In consequence of this common economic structure, there is a common doctrinal structure that cuts across the application of Fiduciary principles in different contexts. However, within this common structure, the particulars of Fiduciary obligation vary in accordance with the particulars of the agency problem in the Fiduciary relationship at issue. This point explains the purported elusiveness of Fiduciary doctrine. It also explains why courts apply Fiduciary law both categorically, such as to trustees and (legal) agents, as well as ad hoc to relationships involving a position of trust and confidence that gives rise to an agency problem.Second, this chapter identifies a functional distinction between primary and subsidiary Fiduciary rules. In all Fiduciary relationships we find general duties of loyalty and care, typically phrased as standards, which proscribe conflicts of interest and prescribe an objective standard of care. But we also find specific subsidiary Fiduciary duties, often phrased as rules, that elaborate on the application of loyalty and care to commonly recurring circumstances in the particular form of Fiduciary relationship. Together, the general primary duties of loyalty and care and the specific subsidiary rules provide for governance by a mix of rules and standards that offers the benefits of both while mitigating their respective weaknesses. Finally, this chapter revisits the puzzle of why Fiduciary law includes mandatory rules that cannot be waived in a relationship deemed Fiduciary. Committed economic contractarians, such as Easterbrook and Fischel, have had difficulty in explaining why the parties to a Fiduciary relationship do not have complete freedom of contract. The answer is that the mandatory core of Fiduciary law serves a cautionary and protective function within the Fiduciary relationship as well as an external categorization function that clarifies rights for third parties. The existence of a mandatory Fiduciary core is thus reconcilable with an economic theory of Fiduciary law.
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the Fiduciary obligations of financial advisors under the law of agency
Journal of financial planning, 2013Co-Authors: Robert H. SitkoffAbstract:This paper considers how agency Fiduciary law might be applied to a financial advisor with discretionary trading authority over a client's account. It (i) surveys the agency problem to which the Fiduciary obligation is directed; (ii) examines the legal context by considering how the Fiduciary obligation undertakes to mitigate this problem; and (iii) examines several potential applications of agency Fiduciary law to financial advisors, including principal trades and the role of informed consent by the client, organizing the discussion under the great Fiduciary rubrics of loyalty and care. This paper was sponsored by Federated Investors, Inc.
