Philosophical Foundations of Fiduciary Law

ISBN : 9780198783343

Andrew S. Gold; Paul B. Miller
448 ページ
171 x 246 mm
The Philosophical Foundations of Law

Fiduciary law is a critically important body of law. Fiduciary duties ensure the integrity of a remarkable variety of relationships, institutions, and organizations. They apply to relationships of great personal significance, including in some jurisdictions the relationship between parents and children. They structure a wide variety of commercial relationships, and they are essential to the regulation of relationships between professional service providers and their clients, including relationships between lawyer and client, doctor and patient, and investment manager and client. Fiduciary duties, perhaps uniquely in private law, challenge traditional ways of marking the boundaries between private and public law, inasmuch as they figure prominently in public governance. Indeed, there is even a storied tradition of thinking of the authority of the state in fiduciary terms. Notwithstanding its importance, fiduciary law has been woefully under-analysed by legal theorists. Filling this gap with a series of chapters by leading theorists, this book includes chapters on: the nature of fiduciary relationships, the connection between fiduciary duties and morality, the content and significance of fiduciary loyalty, the economic significance of fiduciary law, the application of fiduciary principles to public law and international law, the import of fiduciary relationships to theories of authority, and various other fundamental topics in the field. In many cases, new and important questions are raised by the book's chapters. Indeed, this book not only offers a much-needed theoretical assessment of fiduciary topics, it defines the field going forward, setting an agenda for future philosophical study of fiduciary law.


Andrew S. Gold and Paul B. Miller: Introduction

Part I. Fiduciary Relationships
1 The Hon. Justice James Edelman: The Role of Status in the Law of Obligations: Lessons for Fiduciary Duties
2 Joshua Getzler: Ascribing and Limiting Fiduciary Obligations: Understanding the Operation of Consent
3 Paul B. Miller: The Fiduciary Relationship
4 Hanoch Dagan and Sharon Hannes: Managing our Money: The Law of Financial Fiduciaries as a Private Law Institution

Part II. Fiduciary Duties
5 Irit Samet: Fiduciary Loyalty as Kantian Virtue
6 Lionel D. Smith: Can We Be Obliged to Be Selfless?
7 J.E. Penner: Is Loyalty a Virtue, and Even If It Is, Does it Really Help Explain Fiduciary Liability?
8 Andrew S. Gold: The Loyalties of Fiduciary Law

Part III. Economic Theory: Constructive and Critical Perspectives
9 Robert H. Sitkoff: An Economic Theory of Fiduciary Law
10 Daniel Markovits: Sharing Ex Ante and Ex Post: The Non-Contractual Basis of Fiduciary Relations
11 Richard R.W. Brooks: Knowledge in Fiduciary Relations
12 Tamar Frankel: How to Water Down Fiduciary Duties
13 Henry Smith: Why Fiduciary Law is Equitable

Part IV. Fiduciary Principles in Context: Private Law
14 Michele Graziadei: Virtue and Utility: Fiduciary Law in Civil Law and Common Law Jurisdictions
15 Martin Gelter and Genevieve Helleringer: Constituency Directors and Corporate Fiduciary Duties
16 Deborah A. DeMott: The Fiduciary Character of Agency and the Interpretation of Instructions
17 Avihay Dorfman: On Trust and Transubstantiation: Mitigating the Excesses of Ownership

Part V. Fiduciary Principles in Context: Public Law
18 Evan Fox-Decent: Fiduciary Authority and the Service Conception
19 Ethan J. Leib, David L. Ponet, and Michael Serota: Mapping Public Fiduciary Relationships
20 Evan J. Criddle: A Sacred Trust of Civilization: Fiduciary Foundations of International Law


Andrew S. Gold is Bruce W. Nichols Visiting Professor of Law at Harvard Law School and Professor of Law at DePaul University College of Law. His recent scholarship has focused on fiduciary theory, contract theory, civil recourse theory, and corrective justice. He has been a Visiting Scholar at Harvard Law School, and an HLA Hart Visiting Fellow at the University of Oxford. He is also a co-founder of the North American Workshop on Private Law Theory. ; Paul B. Miller is Associate Professor at McGill University Faculty of Law. He is a philosopher of private law concentrating on fiduciary law, trusts, corporate law, and the law of unincorporated organizations. He formerly served as a law clerk to the Hon. Justice Ian Binnie of the Supreme Court of Canada and taught law at Queen's University. He is also a co-founder of the North American Workshop on Private Law Theory.