Philosophical Foundations of Fiduciary Law

Edited by Andrew S. Gold and Paul B. Miller

Philosophical Foundations of Law

The first collection of philosophical essays examining the foundations of fiduciary law, a major branch of private law
Addresses key questions of legal, moral and political philosophy, including principles of natural justice in international law and the conditions of legitimate exercise of state authority
Sheds light on a foundational, critical field of law, establishing directions for future scholarship

Philosophical Foundations of Fiduciary Law

Edited by Andrew S. Gold and Paul B. Miller

Philosophical Foundations of Law

Description

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.

Philosophical Foundations of Fiduciary Law

Edited by Andrew S. Gold and Paul B. Miller

Philosophical Foundations of Law

Introduction, Andrew S. Gold and Paul B. Miller
Part I. Fiduciary Relationships
1:The Role of Status in the Law of Obligations: Lessons for Fiduciary Duties, The Hon. Justice James Edelman
2:Ascribing and Limiting Fiduciary Obligations: Understanding the Operation of Consent, Joshua Getzler
3:The Fiduciary Relationship, Paul B. Miller
4:Managing our Money: The Law of Financial Fiduciaries as a Private Law Institution, Hanoch Dagan and Sharon Hannes
Part II. Fiduciary Duties
5:Fiduciary Loyalty as Kantian Virtue, Irit Samet
6:Can We Be Obliged to Be Selfless?, Lionel D. Smith
7:Is Loyalty a Virtue, and Even If It Is, Does it Really Help Explain Fiduciary Liability?, J.E. Penner
8:The Loyalties of Fiduciary Law, Andrew S. Gold
Part III. Economic Theory: Constructive and Critical Perspectives
9:An Economic Theory of Fiduciary Law, Robert H. Sitkoff
10:Sharing Ex Ante and Ex Post: The Non-Contractual Basis of Fiduciary Relations, Daniel Markovits
11:Knowledge in Fiduciary Relations, Richard R.W. Brooks
12:How to Water Down Fiduciary Duties, Tamar Frankel
13:Why Fiduciary Law is Equitable, Henry Smith
Part IV. Fiduciary Principles in Context: Private Law
14:Virtue and Utility: Fiduciary Law in Civil Law and Common Law Jurisdictions, Michele Graziadei
15:Constituency Directors and Corporate Fiduciary Duties, Martin Gelter and Geneviève Helleringer
16:The Fiduciary Character of Agency and the Interpretation of Instructions, Deborah A. DeMott
17:On Trust and Transubstantiation: Mitigating the Excesses of Ownership, Avihay Dorfman
Part V. Fiduciary Principles in Context: Public Law
18:Fiduciary Authority and the Service Conception, Evan Fox-Decent
19:Mapping Public Fiduciary Relationships, Ethan J. Leib, David L. Ponet, and Michael Serota
20:A Sacred Trust of Civilization: Fiduciary Foundations of International Law, Evan J. Criddle

Philosophical Foundations of Fiduciary Law

Edited by Andrew S. Gold and Paul B. Miller

Philosophical Foundations of Law

Author Information

Edited by Andrew S. Gold, Bruce W. Nichols Visiting Professor of Law, Harvard Law School; Professor of Law, DePaul University College of Law, and Paul B. Miller, Associate Professor, McGill University Faculty of 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.

Contributors:

Andrew S. Gold and Paul B. Miller
The Hon. Justice James Edelman
Joshua Getzler
Paul B. Miller
Hanoch Dagan and Sharon Hannes
Irit Samet
Lionel D. Smith
J.E. Penner
Andrew S. Gold
Robert H. Sitkoff
Daniel Markovits
Richard R.W. Brooks
Tamar Frankel
Henry Smith
Michele Graziadei
Martin Gelter and Geneviève Helleringer
Deborah A. DeMott
Avihay Dorfman
Evan Fox-Decent
Ethan J. Leib, David L. Ponet, and Michael Serota
Evan J. Criddle

Philosophical Foundations of Fiduciary Law

Edited by Andrew S. Gold and Paul B. Miller

Philosophical Foundations of Law

Reviews and Awards

This edited collection brings together a number of leading scholars, one might say an all-star cast, to consider an area of law which, in recent years, has become increasingly topical. The editors are also admirably ambitious for the book, believing that it will âset the agenda for philosophical study of fiduciary law for generations to comeâ. Only the passage of time can vindicate that claim; but the coverage and quality of the collection go a long way to justifying such an expectation. - Daniel J Carr, University of Edinburgh, Edinburgh Law Review

A deep and wide-ranging exploration of fiduciary law by leading scholars from around the world. Anyone working in private or public law who is interested in fundamental questions associated with this topic-whether doctrinal, philosophical, or pragmatic-should start with this volume. - John Goldberg, Eli Goldston Professor of Law, Harvard Law School

This collection, made up of essays from eminent private law thinkers, is a landmark in the field. It both launches fiduciary theory as a serious academic project and constitutes perhaps the most important contribution to that project. - Matthew Harding, Professor of Law, Melbourne Law School

With the renewed interest in private law theory in the last decade, fiduciary obligations have emerged as an especially fertile area of study. As these obligations appear in so many areas of law - from corporate law to family law to the law of trusts - it can be it difficult to get a view of the whole. The chapters in Gold and Miller's volume provide just that. Individually, the contributions advance our understanding of fiduciary law in multiple directions. Taken together, they provide an excellent introduction to fiduciary law as a whole, to the various scholarly approaches to fiduciary obligations, and to the contemporary debates about their design, purpose and justification. - Gregory Klass, Professor of Law, Georgetown University Law Center