The Idea of Status in Fiduciary Law

Forthcoming in: Paul B. Miller & Andrew S. Gold, eds., Contract, Status, and Fiduciary Law (Oxford: Oxford University Press, 2016)

37 Pages Posted: 8 Dec 2015

Date Written: December 3, 2015

Abstract

Much of fiduciary law is built upon status-based characterization of fiduciary relationships. Thus most fiduciary relationships – indeed, all relationships that we think of as being inherently fiduciary – are so designated as a type or kind of relationship to which fiduciary status attaches (e.g., director-corporation, trustee-beneficiary, agent-principal, and lawyer-client relationships). Notwithstanding the prevalence of status-based reasoning in fiduciary law, the idea of status in fiduciary law – and in the law more generally – is poorly understood. This chapter provides a novel account of fiduciary status. The chapter explains conceptual properties that fiduciary status enjoys in common with social, moral and (other) legal statuses. It also explains the distinctive semantic and functional significance of fiduciary status. The chapter provides a conditional justification for the reliance on status-based reasoning in fiduciary law, but it also emphasizes the limits of fiduciary status and indicates the conceptual and normative implications of recognition of these limits.

Keywords: Legal Theory, Philosophy of Private Law, Private Law Theory, Fiduciary Law, Fiduciary Relationships, Fiduciary Duties, Status

JEL Classification: K00, K10, K11, K12, K13, K20, K22

Suggested Citation

Miller, Paul B., The Idea of Status in Fiduciary Law (December 3, 2015). Forthcoming in: Paul B. Miller & Andrew S. Gold, eds., Contract, Status, and Fiduciary Law (Oxford: Oxford University Press, 2016). Available at SSRN: https://ssrn.com/abstract=2698943

Paul B. Miller (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

HOME PAGE: http://law.nd.edu/directory/paul-miller/

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