The Loyalties of Fiduciary Law
Philosophical Foundations of Fiduciary Law, Andrew S. Gold & Paul B. Miller, eds., Oxford University Press, 2014, Forthcoming
34 Pages Posted: 22 Dec 2013
Date Written: December 20, 2013
Fiduciary theorists broadly agree that a duty of loyalty is fundamental to fiduciary relationships. They do not agree on a core minimum content of fiduciary loyalty. Some think that loyalty at the least requires the avoidance of conflicts of interest (and perhaps also conflicts of duties). Others think that loyalty requires a fiduciary to act in what he or she perceives are the beneficiary’s best interests. Yet others conclude that loyalty amounts to the terms of a hypothetical bargain, in a world of zero transaction costs. Each approach is incorrect, at least when we view fiduciary law as a whole. This chapter argues that the various conceptions of fiduciary loyalty are not readily reducible into each other, and that for each of the leading conceptions of fiduciary loyalty the law provides important counter-examples. It is possible to find common features to fiduciary loyalty in its many settings, but doing so requires a very thin account of what it is to be loyal. Recognizing the variations in fiduciary loyalty, however, may tell us something significant about fiduciary law. This chapter indicates how variable fiduciary loyalty is, and it offers an initial exploration of why this matters.
Keywords: fiduciary, loyalty, hypothetical bargain
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