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FIDUCIARY LAW eJOURNAL"Accountability for Authority"
ROBERT FLANNIGAN, University of Saskatchewan When authority is transferred for a defined or limited purpose, the recipient of the authority serves as a surrogate to advance that purpose. A trustee is one kind of surrogate. My objective here is to explain how the law of fiduciary accountability addresses the opportunism mischief that is latent in surrogate authority. I first explain the nature, virtue and limited access of surrogate authority. I then explain the accountability. I show that it applies to trustees in the same way that it applies to, for example, public servants, agents, directors, partners and parents. Then, in order to further emphasise that the mischief of opportunism is a generic mischief that is corrosive of surrogate authority in all contexts, I focus on two areas of current interest, the misuse of authority for sexual gain by employees and the exploitation of authority by police. These might initially seem to be odd areas to link analytically. The linkage, however, is informative. It illustrates that fiduciary accountability is not tied to or reflective of the idiocracy of the diverse contexts where surrogates exercise authority. "The Reasonably Loyal Person"
ANDREW S. GOLD, Brooklyn Law School This chapter is a contribution to a book on John Gardner’s work in private law theory. The chapter takes up a puzzle that Gardner raised: why is there no “reasonably loyal trustee” in fiduciary law? Notably, he proposes that the role of a trustee might lack a law-independent counterpart. That, in turn, could make it impossible for trust law (and by implication, fiduciary law) to “pass the buck” to whatever it is that the “reasonably loyal person” would do. I will suggest that fiduciary relationships frequently do have law-independent counterparts, and moreover that such counterparts can evolve over time. Relatedly, I will argue that a wide range of extra-legal conceptions of loyalty are available for buck passing purposes; not all loyalty is built on a prior meaningful relationship between a loyal party and the object of her loyalty. Lastly, I will conclude with some thoughts on why buck passing could be valuable. "Disloyal Managers and Shareholders’ Wealth"
ELIEZER M. FICH, Drexel University - Department of Finance | ||||||||
