Paul Miller, ‘The Morality of Fiduciary Law’

ABSTRACT
Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or ought, fiduciary law prove responsive to them?

Where in other areas of private law theory – notably, tort theory – pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional for the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several distinct forms of relationship arising in markedly different settings.

In this article, I develop a framework for analysis of the morality of fiduciary law. The framework accomplishes four things. First, it situates questions about the morality of fiduciary law within the context of the general jurisprudential literature on the nature of law and its normativity. Second, it explains the sense in which fiduciary law is normatively complex by virtue of being structurally biplanar, with general equitable principles (duty-imposing rules) overlain upon legal and equitable principles (including, notably, power-conferring rules) that define and enable legal forms of relationship characterized as fiduciary in equity. Third, it distinguishes the general morality of fiduciary duties from the special morality of fiduciary relationship types. Fourth, and finally, it provides an overview of loci of value in fiduciary relationships, canvassing considerations of general and special morality that give salience to the interests of parties, third parties and the public in rules that enable and constrain the performance of fiduciary mandates.

Miller, Paul B, The Morality of Fiduciary Law (August 2, 2020). 62 William and Mary Law Review (forthcoming 2021), Notre Dame Legal Studies Paper forthcoming.

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