Essays Toward A Theory Of Fiduciary Law

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Essays Toward a Theory of Fiduciary Law

Author : Paul Baron Miller
Publisher :
ISBN 13 : 9780494398968
Total Pages : 532 pages
Book Rating : 4.3/5 (989 download)

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Book Synopsis Essays Toward a Theory of Fiduciary Law by : Paul Baron Miller

Download or read book Essays Toward a Theory of Fiduciary Law written by Paul Baron Miller and published by . This book was released on 2008 with total page 532 pages. Available in PDF, EPUB and Kindle. Book excerpt: Fiduciary liability is conventionally understood as premised upon the fiduciary relationship---the establishment of a fiduciary relationship gives rise to fiduciary duties, violation of which renders the fiduciary liable to the beneficiary. Implicit in the conventional view are two assumptions: the first is that the fiduciary relationship is a distinctive kind of legal relationship, and the second that certain of its distinctive qualities suffice to explain and justify fiduciary obligation. The conventional position has persisted for centuries despite the fact that these assumptions remain unjustified. Reams of case law and commentary have failed to yield a clear conception of the fiduciary relationship capable of securing its claim to distinctiveness. Likewise, the existence of a nexus between fiduciary obligation and the fiduciary relationship is largely taken as an article of faith. In recent years, the conventional position has been subject to challenge. Some have suggested that fiduciary obligation is justified directly on the basis of extrinsic moral, economic or policy goals (e.g., protecting trust, promoting economic efficiency). Others have argued that fiduciary obligation is ultimately contractual in nature, and may be explained and justified accordingly. In the end, both instrumentalist and contractualist theories of fiduciary obligation prove unconvincing. Nevertheless, a basic challenge remains valid: the assumptions implicit in the conventional position must be argued for. This thesis addresses that challenge. It seeks to vindicate the conventional position by securing the assumptions upon which it is based. To that end, I develop an account of the fiduciary relationship that articulates its distinctive qualities and shows how certain among them suffice to explain and justify fiduciary obligation. The resulting theory of fiduciary liability draws strength from the fact that it is built upon institutional practice and resonant with dominant private law theory.

The Economic Structure of Fiduciary Law

Author : Robert H. Sitkoff
Publisher :
ISBN 13 :
Total Pages : pages
Book Rating : 4.:/5 (21 download)

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Book Synopsis The Economic Structure of Fiduciary Law by : Robert H. Sitkoff

Download or read book The Economic Structure of Fiduciary Law written by Robert H. Sitkoff and published by . This book was released on 2011 with total page pages. Available in PDF, EPUB and Kindle. Book excerpt: "Abstract: This essay revisits the economic theory of fiduciary law. Nearly two decades have passed since the publication of the seminal economic analyses of fiduciary law by Cooter and Freedman (1991), and by Easterbrook and Fischel (1993), which together have come to underpin the prevailing economic, contractarian model of fiduciary law. The economic theory of agency that motivates those papers has come to permeate the literature on law and legal institutions generally. The law-and-economics movement has matured further, developing new tools and refining its understanding of previously applied concepts. The purpose of this essay is to restatethe economic theory of fiduciary law in an updated and accessible synthesis"--John M. Olin Center for Law, Economics, and Business web site.

Philosophical Foundations of Fiduciary Law

Author : Andrew S. Gold
Publisher : OUP Oxford
ISBN 13 : 0191005290
Total Pages : 543 pages
Book Rating : 4.1/5 (91 download)

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Book Synopsis Philosophical Foundations of Fiduciary Law by : Andrew S. Gold

Download or read book Philosophical Foundations of Fiduciary Law written by Andrew S. Gold and published by OUP Oxford. This book was released on 2014-08-14 with total page 543 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.

The Limits of Consent

Author : Oonagh Corrigan
Publisher : Oxford University Press
ISBN 13 : 019923146X
Total Pages : 247 pages
Book Rating : 4.1/5 (992 download)

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Book Synopsis The Limits of Consent by : Oonagh Corrigan

Download or read book The Limits of Consent written by Oonagh Corrigan and published by Oxford University Press. This book was released on 2009-01-29 with total page 247 pages. Available in PDF, EPUB and Kindle. Book excerpt: Since its inception as an international principle to protect the welfare of patients and volunteers taking part in medical research, informed consent has become increasingly important within healthcare. Despite its ubiquitous status, there are a number of scholars who are beginning to question whether consent is adequate for contemporary biomedical research. The Limits of Consent considers a number of criticisms that have been levelled at the prominence given to autonomy, a central tenet underpinning the rationale for informed consent in Western bioethics. It raises questions about how quickly and easily this principle has been adopted, and how appropriate it is for those actively engaged in research. In the context of genetic research, for example, the individual's overriding right of autonomy to give consent to research could have huge implications for other members of their families. The Limits of Consent questions the assumption that informed consent protects or facilitates individual autonomy, and discusses empirical studies which suggest that gaining a truly informed consent can be difficult to achieve in practice. With the expectation of treatment and guidance from the physician, how much is the process of consent governed by social norms and expectations? The Limits of Consent focuses upon three principal areas within biomedical research: clinical trials, genetic research, and research with those who may have impaired capacity to consent. It is a truly multi-disciplinary book, incorporating perspectives from medicine, law, philosophy and sociology. The Limits of Consent is a fascinating exploration of the inadequacies of consent, and will appeal to those in the fields of bioethics, socio-legal studies, sociology, and health law. Policy makers, research ethics committee members, and those healthcare professionals with an interest in medical ethics, will also find the book of interest.

The Oxford Handbook of Fiduciary Law

Author : Evan J. Criddle
Publisher : Oxford University Press
ISBN 13 : 0190634111
Total Pages : 912 pages
Book Rating : 4.1/5 (96 download)

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Book Synopsis The Oxford Handbook of Fiduciary Law by : Evan J. Criddle

Download or read book The Oxford Handbook of Fiduciary Law written by Evan J. Criddle and published by Oxford University Press. This book was released on 2019-04-29 with total page 912 pages. Available in PDF, EPUB and Kindle. Book excerpt: The Oxford Handbook of Fiduciary Law provides a comprehensive overview of critical topics in fiduciary law and theory through chapters authored by leading scholars. The Handbook opens with surveys of the many fields of law in which fiduciary duties arise, including agency law, trust law, corporate law, pension law, bankruptcy law, family law, employment law, legal representation, health care, and international law. Drawing on these surveys, the Handbook offers a synthetic analysis of fiduciary law's key concepts and principles. Chapters in the Handbook explore the defining features of fiduciary relationships, clarify the distinctive fiduciary duties that arise in these relationships, and identify the remedies available for breach of fiduciary duties. The volume also provides numerous comparative perspectives on fiduciary law from eminent legal historians and from scholars with deep expertise in a diverse array of the world's legal systems. Finally, the Handbook lays the groundwork for future research on fiduciary law and theory by highlighting cross-cutting themes, identifying persistent theoretical and practical challenges, and exploring how the field could be enriched through empirical analysis and interdisciplinary insights from economics, philosophy, and psychology. Unparalleled in its breadth and depth of coverage, The Oxford Handbook of Fiduciary Law represents an invaluable resource for practitioners, policymakers, scholars, and students in this essential field of law.

Fiduciary Law

Author : Tamar Frankel
Publisher :
ISBN 13 : 019539156X
Total Pages : 334 pages
Book Rating : 4.1/5 (953 download)

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Book Synopsis Fiduciary Law by : Tamar Frankel

Download or read book Fiduciary Law written by Tamar Frankel and published by . This book was released on 2011 with total page 334 pages. Available in PDF, EPUB and Kindle. Book excerpt: In Fiduciary Law, Tamar Frankel examines the structure, principles, themes, and objectives of fiduciary law. Fiduciaries, which include corporate managers, money managers, lawyers, and physicians among others, are entrusted with money or power. Frankel explains how fiduciary law is designed to offer protection from abuse of this method of safekeeping. She deals with fiduciaries in general, and identifies situations in which fiduciary law falls short of offering protection. Frankel analyzes fiduciary debates, and argues that greater preventive measures are required. She offers guidelines for determining the boundaries and substance of fiduciary law, and discusses how failure to enforce fiduciary law can contribute to failing financial and economic systems. Frankel offers ideas and explanations for the courts, regulators, and legislatures, as well as the fiduciaries and entrustors. She argues for strong legal protection against abuse of entrustment as a means of encouraging fiduciary services in society. Fiduciary Law can help lawyers and policy makers designing the future law and the systems that it protects.

Research Handbook on Fiduciary Law

Author : D. Gordon Smith
Publisher : Edward Elgar Publishing
ISBN 13 : 1784714836
Total Pages : 471 pages
Book Rating : 4.7/5 (847 download)

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Book Synopsis Research Handbook on Fiduciary Law by : D. Gordon Smith

Download or read book Research Handbook on Fiduciary Law written by D. Gordon Smith and published by Edward Elgar Publishing. This book was released on with total page 471 pages. Available in PDF, EPUB and Kindle. Book excerpt: The Research Handbook on Fiduciary Law offers specially commissioned chapters written by leading scholars and covers a wide range of important topics in fiduciary law. Topical contributions discuss: various fiduciary relationships; the duty of loyalty and other fiduciary obligations; fiduciary remedies; the role of equity; the role of trust; international and comparative perspectives; and public fiduciary law. This Research Handbook will be of interest to readers concerned with both theory and practice, as it incorporates significant new insights and developments in the field.

Rights and Private Law

Author : Donal Nolan
Publisher : Bloomsbury Publishing
ISBN 13 : 1847318525
Total Pages : 682 pages
Book Rating : 4.8/5 (473 download)

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Book Synopsis Rights and Private Law by : Donal Nolan

Download or read book Rights and Private Law written by Donal Nolan and published by Bloomsbury Publishing. This book was released on 2011-12-02 with total page 682 pages. Available in PDF, EPUB and Kindle. Book excerpt: In recent years a strand of thinking has developed in private law scholarship which has come to be known as 'rights' or 'rights-based' analysis. Rights analysis seeks to develop an understanding of private law obligations that is driven, primarily or exclusively, by the recognition of the rights we have against each other, rather than by other influences on private law, such as the pursuit of community welfare goals. Notions of rights are also assuming greater importance in private law in other respects. Human rights instruments are having an increasing influence on private law doctrines. And in the law of unjust enrichment, an important debate has recently begun on the relationship between restitution of rights and restitution of value. This collection is a significant contribution to debate about the role of rights in private law. It includes essays by leading private law scholars addressing fundamental questions about the role of rights in private law as a whole and within particular areas of private law. The collection includes contributions by advocates and critics of rights-based approaches and provides a thorough and balanced analysis of the relationship between rights and private law.

Rediscovering the Duty of Obedience

Author : Rob Atkinson
Publisher :
ISBN 13 :
Total Pages : 0 pages
Book Rating : 4.:/5 (137 download)

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Book Synopsis Rediscovering the Duty of Obedience by : Rob Atkinson

Download or read book Rediscovering the Duty of Obedience written by Rob Atkinson and published by . This book was released on 2008 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Conventional theory holds that the fiduciary relationship comprises two fundamental duties, care and loyalty. This paper argues that a third duty, obedience, is more basic, the foundation on which the duties of care and loyalty ultimately rest. In place of the prevailing dualistic theory of fiduciary duty, it offers a trinitarian alternative. As the trinitarian metaphor implies, the claim here is that, properly understood, three identifiably different elements are functionally distinct yet essentially one. The paper itself has three parts. The first, descriptive part distinguishes the duty of obedience from its derivatives, care and loyalty; identifies a strong and a weak form of the duty of obedience; and traces the role of both forms of the duty of obedience in four contexts: business corporations, private trusts, charitable trusts, and charitable corporations. The second, normative part assesses the appropriate role of the duty of obedience, especially its strong form, in each of these contexts and concludes that its traditionally large role in charities is not justified. The third and final part suggests ways in which the policies supposedly served by the strong form of the duty of obedience could be advanced without unnecessary concessions to what earlier skeptical commentators have called "dead hand control."

Fiduciary Government

Author : Evan J. Criddle
Publisher : Cambridge University Press
ISBN 13 : 9781107194243
Total Pages : 500 pages
Book Rating : 4.1/5 (942 download)

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Book Synopsis Fiduciary Government by : Evan J. Criddle

Download or read book Fiduciary Government written by Evan J. Criddle and published by Cambridge University Press. This book was released on 2018-11-15 with total page 500 pages. Available in PDF, EPUB and Kindle. Book excerpt: The idea that the state is a fiduciary to its citizens 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 book is the first of its kind: a collection of chapters by leading writers on public fiduciary subject areas. The authors develop new accounts of how fiduciary principles apply to representation; to officials and judges; to problems of legitimacy and political obligation; to positive rights; to the state itself; and to the history of ideas. The resulting volume should be of great interest to political theorists and public law scholars, to private fiduciary law scholars, and to students seeking an introduction to this new and increasingly relevant area of study.

Theorizing Transnational Fiduciary Law

Author : Seth Davis
Publisher :
ISBN 13 :
Total Pages : 14 pages
Book Rating : 4.:/5 (129 download)

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Book Synopsis Theorizing Transnational Fiduciary Law by : Seth Davis

Download or read book Theorizing Transnational Fiduciary Law written by Seth Davis and published by . This book was released on 2020 with total page 14 pages. Available in PDF, EPUB and Kindle. Book excerpt: This symposium Article theorizes and assesses transnational legal ordering of fiduciary law. Fiduciary law imposes legally enforceable duties on those entrusted with discretionary authority over the interests of others. The fiduciary law of a state may apply to fiduciary relationships having a transnational (or even global) scope. Fiduciary norms themselves are transnational to the extent that they settle as governing legal norms in ways that transcend and permeate state boundaries. Curiously, however, fiduciary legal theory and transnational legal theory have yet to meet. This symposium takes the first steps towards a comprehensive theory of transnational fiduciary law. To assess transnational legal ordering of fiduciary law, one must study the extent of normative settlement across state boundaries. This can be done in terms of a meta concept of fiduciary law involving a transnational body of law, or in terms of the processes that give rise to discrete domains of fiduciary law to address particular problems as understood by relevant actors. Comparative legal analysis is critical for assessing the extent of concordance and divergence in the development and practice of fiduciary law across states. This Article introduces symposium articles that assess transnational fiduciary law as a meta concept; transnational legal ordering of fiduciary law in discrete domains; and comparative fiduciary law. Together, these articles suggest that processes of transnational legal ordering can give rise to transnational fiduciary law and the potential development of discrete transnational legal orders that transcend and permeate nation-states.

Liberty in Loyalty

Author : Evan J. Criddle
Publisher :
ISBN 13 :
Total Pages : 0 pages
Book Rating : 4.:/5 (137 download)

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Book Synopsis Liberty in Loyalty by : Evan J. Criddle

Download or read book Liberty in Loyalty written by Evan J. Criddle and published by . This book was released on 2017 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law's core features. The normative foundations of fiduciary loyalty come into sharper focus when viewed through the lens of republican legal theory. Consistent with the republican tradition, the fiduciary duty of loyalty serves primarily to ensure that a fiduciary's entrusted power does not compromise liberty by exposing her principal and beneficiaries to domination. The republican theory has significant advantages over previous theories of fiduciary law because it better explains and justifies the law's traditional features, including the uncompromising requirements of fiduciary loyalty and the customary remedies of rescission, constructive trust, and disgorgement. Significantly, the republican theory arrives at a moment when American fiduciary law stands at a crossroads. In recent years, some politicians, judges, and legal scholars have worked to dismantle two central pillars of fiduciary loyalty: the categorical prohibition against unauthorized conflicts of interest and conflicts of duty (the no-conflict rule), and the requirement that fiduciaries relinquish unauthorized profits (the no-profit rule). The republican theory explains why these efforts to scale back the duty of loyalty should be resisted in the interest of safeguarding liberty.

Fiduciary Law

Author : Leonard Ian Rotman
Publisher :
ISBN 13 :
Total Pages : 482 pages
Book Rating : 4.:/5 (18 download)

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Book Synopsis Fiduciary Law by : Leonard Ian Rotman

Download or read book Fiduciary Law written by Leonard Ian Rotman and published by . This book was released on 2011 with total page 482 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Philosophical Foundations of Fiduciary Law

Author : Andrew S. Gold
Publisher :
ISBN 13 : 0198701721
Total Pages : 449 pages
Book Rating : 4.1/5 (987 download)

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Book Synopsis Philosophical Foundations of Fiduciary Law by : Andrew S. Gold

Download or read book Philosophical Foundations of Fiduciary Law written by Andrew S. Gold and published by . This book was released on 2014 with total page 449 pages. Available in PDF, EPUB and Kindle. Book excerpt: Fiduciary law is one of the most important areas of law, governing a wide range of relationships that affect people in their daily lives. These new and innovative essays explore the foundations of fiduciary relationships and the duties of loyalty fiduciaries owe to their beneficiaries.

An Economic Theory of Fiduciary Law

Author : Robert H. Sitkoff
Publisher :
ISBN 13 :
Total Pages : 14 pages
Book Rating : 4.:/5 (13 download)

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Book Synopsis An Economic Theory of Fiduciary Law by : Robert H. Sitkoff

Download or read book An Economic Theory of Fiduciary Law written by Robert H. Sitkoff and published by . This book was released on 2014 with total page 14 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.

Dissertation Abstracts International

Author :
Publisher :
ISBN 13 :
Total Pages : 700 pages
Book Rating : 4.F/5 ( download)

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Book Synopsis Dissertation Abstracts International by :

Download or read book Dissertation Abstracts International written by and published by . This book was released on 2008 with total page 700 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Research Handbook on the History of Corporate and Company Law

Author : Harwell Wells
Publisher : Edward Elgar Publishing
ISBN 13 : 1784717665
Total Pages : 653 pages
Book Rating : 4.7/5 (847 download)

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Book Synopsis Research Handbook on the History of Corporate and Company Law by : Harwell Wells

Download or read book Research Handbook on the History of Corporate and Company Law written by Harwell Wells and published by Edward Elgar Publishing. This book was released on 2018-02-23 with total page 653 pages. Available in PDF, EPUB and Kindle. Book excerpt: Understanding the corporation means understanding its legal framework, but until recently the origins and evolution of corporate law have received relatively little attention. The topical chapters featured in this Research Handbook, contributed by leading scholars from around the world, examine the historical development of corporation and business organization law in the Americas, Europe, and Asia from the ancient world to modern times, providing an invaluable resource for both further historical research and scholars seeking the origins of present-day issues.