The Naked Fiduciary
Michelle M. Harner
University of Maryland Francis King Carey School of Law
Jamie Marincic Griffin
University of Michigan at Ann Arbor
Arizona Law Review, Vol. 54, 2012, pp. 879-937
U of Maryland Legal Studies Research Paper No. 2012-19
Business law is grounded in the common law of fiduciary duty. Courts and policymakers have been loath to abandon that principle. Yet, particularly in the contractual context of limited liability companies (LLCs), the fiduciary label is illusory and may undercut sound governance practices for those entities. This Article presents an in-depth empirical study about governance provisions included in LLC operating agreements and examines the implications of the data in the context of various types of businesses that might choose to organize as LLCs. The Article uses the data and related case studies to offer a new approach to LLC governance - the "coactive” LLC.
Number of Pages in PDF File: 61
Keywords: Limited Liability Companies, LLC, business law, fiduciary, fiduciary duties, default rules, governance, unincorporated entitiesAccepted Paper Series
Date posted: April 6, 2012 ; Last revised: November 20, 2012
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