Fiduciary Law, Good Faith and Publicness

Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff, eds., The Oxford Handbook of Fiduciary Law (New York: Oxford University Press, 2018)

Washington University in St. Louis Legal Studies Research Paper No. 18-03-05

20 Pages Posted: 9 Apr 2018 Last revised: 30 Apr 2018

See all articles by Hillary A. Sale

Hillary A. Sale

Georgetown University Law Center; Georgetown University - Robert Emmett McDonough School of Business

Date Written: March 30, 2018

Abstract

This Chapter uses corporate law as a case study to evaluate the content of the fiduciary duty of good faith. Tracing its development from Van Gorkom through to the present, the Chapter shows how good faith, though part of the duty of loyalty, has become a gap-filler, policing the space between generally-exculpated breaches of care and the more obvious breaches of loyalty. This Chapter also surveys good faith case law to show the most common “red flags” for which corporate officers and directors should be monitoring. An analysis of two of the most recent good faith cases – City of Birmingham and In re Wells Fargo – show how the theory of publicness can be used to predict future good faith developments. Finally, the Chapter ends by showing that the duty of good faith’s expansion into trust law, parallels its corporate development by emphasizing its gap-filler function.

Keywords: Corporate law, corporations, corporate governance, boards of directors, officers, fiduciary duty, good faith, loyalty, agents, agency law

Suggested Citation

Sale, Hillary A., Fiduciary Law, Good Faith and Publicness (March 30, 2018). Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff, eds., The Oxford Handbook of Fiduciary Law (New York: Oxford University Press, 2018); Washington University in St. Louis Legal Studies Research Paper No. 18-03-05. Available at SSRN: https://ssrn.com/abstract=3153079 or http://dx.doi.org/10.2139/ssrn.3153079

Hillary A. Sale (Contact Author)

Georgetown University Law Center ( email )

Georgetown University - Robert Emmett McDonough School of Business ( email )

3700 O Street, NW
Washington, DC 20057
United States

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