Post by alefdracon on Dec 27, 2015 2:39:21 GMT 4
The Idea of Status in Fiduciary Law
Paul B. Miller
McGill University Faculty of Law
December 3, 2015
Forthcoming in: Paul B. Miller & Andrew S. Gold, eds., Contract, Status, and Fiduciary Law (Oxford: Oxford University Press, 2016)
Abstract:
Much of fiduciary law is built upon status-based characterization of fiduciary relationships. Thus most fiduciary relationships – indeed, all relationships that we think of as being inherently fiduciary – are so designated as a type or kind of relationship to which fiduciary status attaches (e.g., director-corporation, trustee-beneficiary, agent-principal, and lawyer-client relationships). Notwithstanding the prevalence of status-based reasoning in fiduciary law, the idea of status in fiduciary law – and in the law more generally – is poorly understood. This chapter provides a novel account of fiduciary status. The chapter explains conceptual properties that fiduciary status enjoys in common with social, moral and (other) legal statuses. It also explains the distinctive semantic and functional significance of fiduciary status. The chapter provides a conditional justification for the reliance on status-based reasoning in fiduciary law, but it also emphasizes the limits of fiduciary status and indicates the conceptual and normative implications of recognition of these limits.
Number of Pages in PDF File: 37
SSRN-id2698943.pdf (464.59 KB)