Category Archives: Equity

Gold and Miller, ‘Fiduciary Duties in Social Enterprise’

Abstract: This chapter examines theoretical and practical issues relating to fiduciary administration in social enterprise. It argues that social enterprise often calls for fiduciary administration on a hybrid model, combining elements of service-type administration and governance-type administration. Like standard service-type situations, social enterprise calls for administration in the interests of a defined constituency (ordinarily, shareholders). […]

Sergio Campos, ‘The Class Action as Trust’

Abstract: The class action is controversial because the class attorney can litigate or settle the claims of the class members without their consent. Many scholars have turned to corporate law to address the potentially disloyal behavior of the class attorney. These scholars have used analogies to corporate law to support (1) the use of opt […]

Daniel Kelly, ‘Remedies for Breach of Trust’

Abstract: Private and charitable trusts hold trillions of dollars in assets. Trustees manage, invest, and distribute these assets, subject to fiduciary duties, such as the duty of loyalty and prudence. But remedies for breach of trust, and their justifications, are convoluted. The conventional view, especially in law and economics, is to characterize most fiduciary relationships, […]

Rainer Kulms, ‘Trusts As Vehicles for Investment’

Abstract: Financial markets have become the main drivers for legal change. Investors are interested in in funds which promise high returns while assuring protection from moral hazard and immunity against third party claims, irrespective of whether the fund is organized as a trust, a corporate entity or contractual investment scheme. Global finance has forced legislators […]

‘The Method In Fiduciary Law’s Mixed Messages’

“American courts routinely pay homage to Benjamin Cardozo’s classic statement in Meinhard v Salmon (1928) that fiduciaries owe their beneficiaries a ‘duty of the finest loyalty’ that is ‘stricter than the morals of the marketplace’. In practice, however, courts rarely set aside fiduciary decisions in the absence of an unauthorized conflict of interest or other […]

Carter, Courtney and Tolhurst, ‘An Assimilated Approach To Discharge For Breach Of Contract By Delay’

Abstract: The conflict between common law and equity on the question of when time should be regarded as being ‘of the essence’ for the performance of a contract has often been debated, as has the impact of its resolution by the Judicature reforms in favour of equity’s more relaxed approach. Even so, it is tolerably […]

Just Published: Degeling and Varuhas (eds), Equitable Compensation and Disgorgement of Profit

This collection of essays interrogates significant issues at the forefront of scholarship and legal practice in the field of money remedies in equity. Chapters address the contentious and developing field of equitable compensation, including: the nature of equitable compensation; the relevant causation inquiry for equitable compensation; whether notions of contribution apply to multiple agents; accessorial […]

‘Erie and Equity’

Michael T Morley, The Federal Equity Power (March 1, 2017), available at SSRN. Michael Morley has many skills we admire in a scholar: he is doggedly productive; he has an easy command of the established authorities; and he typically identifies sources that shed new light on the problem he has chosen to tackle. Perhaps best […]

Andres Knobe, ‘Trusts: Weapons of Mass Injustice?’

Abstract: This paper seeks to start a debate on the harms that trusts can inflict on societies (eg money laundering, corruption and tax evasion risks, potential to defraud creditors, avoid taxes, etc), and what can be done about this. The paper takes a global perspective on the risks of secrecy, asset protection and a race […]

Lionel Smith, ‘Massively Discretionary Trusts’

Abstract: Trust drafting practices have changed dramatically in recent decades. A range of considerations has led to an increase in the dispositive discretions held by trustees. In some cases, the trustees’ dispositive discretions effectively govern the whole trust structure, leading to what the author calls a ‘massively discretionary trust’. These trusts create a series of […]