Category Archives: Equity and Trusts

Lionel Smith, ‘Parenthood is a fiduciary relationship’

ABSTRACT Canadian courts have held that parents stand in a fiduciary relationship with their children. Some commentators take the view that this is an inappropriate and unwarranted extension of a set of concepts that were originally elaborated in the context of the management of property rights and other pecuniary interests. The goal of this article […]

Mark Bennett, ‘The Illusory Trust Doctrine: Formal or Substantive?’

ABSTRACT This paper argues that the illusory trust doctrine is an exercise in formal reasoning according to principles of trusts law, rather than a substantive flight to substance. Bennett, Mark J, The Illusory Trust Doctrine: Formal or Substantive? (June 9, 2020). Victoria University of Wellington Law Review, forthcoming.

Brian Frye, ‘The Illusory “Public Trust” in Art’

ABSTRACT The ‘deaccessioning police’ argue that it is ‘unethical’ for art museums to ‘deaccession’ or ‘sell’ works of art from their collections for any purpose other than buying different works of art, because museums do not really own the art in their collections, but only hold it subject to the ‘public trust doctrine’. This essay […]

‘Transnational Fiduciary Law: Spaces and Elements’

“Even a cursory review shows ample evidence of the importance of fiduciary-related norms, not only both in common-law and civil-law jurisdictions, but also beyond the nation state. Additionally, many norms are not only created through national or quasi-national legislation on a supranational level – as, eg, in the European Union – but also by non-governmental […]

Univar UK Ltd v Smith [2020] EWHC 1596 (Ch): rectification of pension schemes after FSHC’

“On 19 June 2020, Mr Justice Trower handed down judgment granting rectification of the Univar Company Pension Scheme (1978), in the first pension rectification claim decided after a full trial since the landmark decision of the Court of Appeal in FSHC Group Holdings Ltd v GLAS Trust Corp Ltd [2019] EWCA Civ 1361. The Claimant […]

David Luban, ‘Fiduciary Legal Ethics, Zeal, and Moral Activism’

ABSTRACT The recent turn to fiduciary theory among private lawyer scholars suggests that ‘lawyer as fiduciary’ may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues […]

‘The Supreme Court tames but does not end disgorgement in SEC cases: Liu v SEC

“By an 8-1 vote (with Justice Thomas dissenting), the Supreme Court in an opinion by Justice Sotomayor upheld – while limiting – the SEC’s power to seek disgorgement in fraud cases. Sotomayor sets the stage as follows: ‘In civil actions, the SEC can seek civil penalties and “equitable relief” …’” (more) [, 23 June]

Peter Wendel, ‘Testamentary Transfers and the Intent versus Formalities Debate: The Case for a “Charitable” Common Ground’

ABSTRACT The dominant issue in the law of wills for much of last half century has been how much formality the law should require before giving effect to a party’s testamentary intent. The traditionalists favor: (1) the maintaining the prevailing approach to the Wills Act formalities; (2) strict enforcement of those formalities; and (3) courts […]

‘Casenote: Ezair v Conn [2020] EWCA (Civ) 687′

“In Ezair v Conn [2020] EWCA (Civ) 687, the Court of Appeal has struck a blow in favour of established doctrine, in a case involving uncompleted contracts for the sale and sub-sale of land. By way of background, a purchaser under an uncompleted contract for the sale of land which either is, or has become, […]

Aleksei Gudkov, ‘On Fiduciary Relationship with Artificial Intelligence Systems’

ABSTRACT This article aims to address the theoretical and practical issues of fiduciary relationship with artificial intelligence systems. The findings point out that human can establish conditional fiduciary relationships with autonomous artificial intelligence systems by unilateral recognition, or authorization by consent. Artificial intelligence systems can have a social personality when authorized by humans. Although AI […]