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The Naked Fiduciary

61 Pages Posted: 6 Apr 2012 Last revised: 20 Nov 2012

Michelle M. Harner

University of Maryland Francis King Carey School of Law

Jamie Marincic Griffin

University of Michigan at Ann Arbor

Date Written: 2012

Abstract

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 "coactiveā€¯ LLC.

Keywords: Limited Liability Companies, LLC, business law, fiduciary, fiduciary duties, default rules, governance, unincorporated entities

Suggested Citation

Harner, Michelle M. and Marincic Griffin, Jamie, The Naked Fiduciary (2012). Arizona Law Review, Vol. 54, 2012, pp. 879-937; U of Maryland Legal Studies Research Paper No. 2012-19. Available at SSRN: https://ssrn.com/abstract=2034928

Michelle M. Harner (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States
410-706-4238 (Phone)

Jamie Marincic Griffin

University of Michigan at Ann Arbor ( email )

500 S. State Street
Ann Arbor, MI 48109
United States

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