ABSTRACT
Loyalty resides at the core of fiduciary law, but scholars do not agree whether the legal understanding of loyalty (‘fiduciary loyalty’) is informed by non-legal ideas about loyalty (‘ordinary loyalty’). This Article addresses this disagreement empirically using corpus linguistics, a methodology for investigating language usage in systematic collections of texts called ‘corpora’, and concludes that fiduciary loyalty is largely distinct from ordinary loyalty, even though both are properly called ‘loyalty’ because they serve similar functions in their respective relationships.
Judges, lawyers and scholars are concerned with this issue for three reasons. First, understanding the source of judicial ideas about fiduciary loyalty helps explain the nature and extent of the duty of loyalty in fiduciary law. Second, standards of conduct tell fiduciaries what to do and how to do it, so it is important to know whether fiduciaries should refer to ordinary ideas about loyalty. Third, even if fiduciary loyalty is largely distinct from ordinary loyalty, as we conclude, analogies to ordinary loyalty can aid in understanding the fiduciary duty of loyalty. We frame our inquiry into the potential overlap of judicial discourse and ordinary discourse as a simple question: is fiduciary loyalty really loyalty?
Smith, D Gordon and Gracheva, Marianna, Is Fiduciary Loyalty Really Loyalty? (July 29, 2024), BYU Law Research Paper 24-17.
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