April 02, 2014
Andrew Gold on "Philosophical Foundations of Fiduciary Law"
Posted by Gordon Smith

The following comes to us from Andrew Gold of DePaul University College of Law:

First, Paul Miller and I want to thank Gordon for the opportunity to post on Conglomerate! We are editors of a new collection of essays, Philosophical Foundations of Fiduciary Law, that will be published later this year by Oxford University Press – and we are very grateful for the chance to share some details about the volume.  The book has an outstanding group of contributors, and the chapters span a wide variety of fiduciary topics and methodologies.

Fiduciary law is still an underdeveloped field in private law theory.  Yet fiduciary law is very important to a wide variety of subjects, from corporate law, to lawyer-client and doctor-patient relationships, to parent-child relationships, to political theory.  This new volume should fill a major gap in the literature.  We thought it might be helpful to provide some links to the drafts now available on ssrn.

A series of chapters focus on fiduciary relationships and the core duties associated with those relationships.  For example, Paul Miller provides a new account of fiduciary relationships and their nature.  From a Kantian perspective, Irit Samet considers whether fiduciary loyalty is a virtue.  She suggests that it can be.  Lionel Smith considers whether there is a fiduciary duty of loyalty; he concludes that there is not. In my own chapter, I inquire into the core minimum content of fiduciary loyalty.  In addition to these topics, the book will also include new work on the duty of candor.

Several authors assess fiduciary law from an economic perspective.  Examples include Robert Sitkoff’s chapter, which provides an economic theory of fiduciary law in general.  Among other things, Sitkoff explains how fiduciary law’s mandatory terms can be squared with efficiency values.  In addition, Henry Smith offers a functional account of the link between fiduciary law and equity.  Further chapters on the significance of economic analysis will be included in the volume.

Other contributions discuss particular types of fiduciary relationship.  For example, Deborah DeMott offers a new account of the interpretation of instructions in agency law.  Hanoch Dagan and Sharon Hannes assess financial fiduciaries as a distinctive private law institution.  Avihay Dorfman provides an innovative theory of the trust relationship, trust law fiduciary duties, and their connection to ownership.  And Martin Gelter and Genevieve Helleringer offer a distinctive account of constituency directors’ fiduciary duties in corporate law.

On the public law side, Evan Fox-Decent provides a new account of fiduciary authority, drawing on the work of Joseph Raz and others on the authority of the state.  Ethan Leib, David Ponet, and Michael Serota consider how public fiduciaries should be defined, and, relatedly, which parties should properly be understood as their beneficiaries. Finally, Evan Criddle considers the relation between fiduciary principles and international law, focusing on the relevance of fiduciary principles to state sovereignty and international institutions.

Additional contributions have been authored by Richard Brooks, Justice James Edelman, Tamar Frankel, Joshua Getzler, Michele Graziadei, Daniel Markovits, and James Penner.  Each offers insightful new theoretical perspectives on fiduciary law.

Paul and I hope that this volume – and other recent work in the field – will encourage more scholarship on fiduciary law topics.  Together with Gordon, and with Evan Criddle, we have also put together some panels on fiduciary law at the upcoming Law & Society conference.  We are very excited about this new volume, and we look forward to future discussion! 

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