scholarly journals Motives and Fiduciary Loyalty

2020 ◽  
Vol 65 (1) ◽  
pp. 41-63
Author(s):  
Stephen R Galoob* ◽  
Ethan J Leib*
Keyword(s):  
Cognitive Dimension ◽  
Realistic Picture ◽  
Sixth Amendment ◽  
Motivational Structure ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships ◽  
The U.S

Abstract: How, if at all, do motives matter to loyalty? We have argued that loyalty (and the duty of loyalty in fiduciary law) has a cognitive dimension. This kind of “cognitivist” account invites the counterargument that, because most commercial fiduciary relationships involve financial considerations, purity of motive cannot be central to loyalty in the fiduciary context. We contend that this counterargument depends on a flawed understanding of the significance of motive to loyalty. We defend a view of the importance of motivation to loyalty that we call the compatibility account. On this view, A acts loyally toward B only if A’s motives are compatible with A’s robustly assigning non-derivative significance to the interests of B. We show that the compatibility account describes the motivational structure of fiduciary loyalty and of loyalty as such. This account provides a realistic picture of motivation and helps respond to two broader criticisms of cognitivism: first, that attributing significance to motivation is paradoxical; second, that attributing significance to motive would make fiduciary law impossible to administer. We also show that the compatibility account can help explain features of ineffective assistance of counsel jurisprudence under the Sixth Amendment to the U.S. Constitution, which draws on the lawyer’s duty of loyalty toward the client.

Fiduciary Law and Moral Norms

2019 ◽  
pp. 779-796
Author(s):  
James Penner
Keyword(s):  
Decision Making ◽  
Good Faith ◽  
Best Interests ◽  
Test Case ◽  
Moral Norms ◽  
Bad Faith ◽  
Employee Loyalty ◽  
Natural Justice ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships

This chapter explores the connection between fiduciary relationships and moral norms or standards. It first considers the distinctions between employee “loyalty,” obligations of good faith, and the duty to act in the principal’s best interests. It then examines the two moral norms covered by the fiduciary’s duty of loyalty: the “bad faith breach” norm and the “necessary fiduciary norm.” The “bad faith breach” norm prohibits the fiduciary from taking advantage of his or her position by breaching, in bad faith, a duty owed to his or her principal. This norm applies to others who are not fiduciaries, such as employees and parents. The chapter explains how the “bad faith breach” norm relates to “breach of trust” or breach of faith and how the necessary fiduciary norm is associated with the norm of natural justice, which prohibits bias in decision-making. Finally, it reviews a test case that illustrates what sort of “duty of loyalty” arises in familial relationships.

The Fiduciary Duty of Loyalty

2019 ◽  
pp. 383-403 ◽  
Author(s):  
Andrew S. Gold
Keyword(s):  
Conflicts Of Interest ◽  
Fiduciary Duty ◽  
Central Concept ◽  
Common View ◽  
The Core ◽  
The Common ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships ◽  
Default Rules ◽  
Core Features

This chapter addresses the fiduciary duty of loyalty. Loyalty is a central concept in fiduciary law, even as scholars differ on whether we should reason from fiduciary relationships to loyalty obligations, or the other way around. Nonetheless, the common view across jurisdictions and across theories is that loyalty is vital to fiduciary relationships. This chapter first provides an overview of the core features of fiduciary loyalty, with particular emphasis on the no-conflict rules, which have two basic components: a rule against conflicts of interest and a rule against conflicts of duty. It then considers the no-profit rule and how it relates to the rules against conflicts of interest, along with duties of good faith and disclosure and the link between fiduciary loyalty and other obligations. It also discusses remedies that are generally associated with breach of loyalty, including the disgorgement remedy, as well as specific contexts that modify the effect or scope of fiduciary loyalty obligations (for example, contractual modifications of legal default rules or cases where there are multiple beneficiaries), and additional factors that affect application of the fiduciary duty of loyalty. The chapter concludes with an analysis of theories that explain fiduciary loyalty as a category.

scholarly journals Justifying Fiduciary Duties

2013 ◽  
Vol 58 (4) ◽  
pp. 969-1023 ◽  
Author(s):  
Paul B. Miller
Keyword(s):  
Private Law ◽  
Legal Capacity ◽  
Alternative Account ◽  
Fiduciary Duties ◽  
Legal Relationship ◽  
Core Set ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships

Fiduciary duties are critical to the integrity of a remarkable variety of relationships, including those between trustee and beneficiary, director and corporation, agent and principal, lawyer and client, doctor and patient, parent and child, and guardian and ward. Notwithstanding their variety, all fiduciary relationships are presumed to enjoy common characteristics and to attract a core set of demanding legal duties, most notably a duty of loyalty. Surprisingly, however, the justification for fiduciary duties is an enigma in private law theory. It is unclear what makes a relationship fiduciary and why fiduciary relationships attract fiduciary duties. This article takes up the enigma. It assesses leading reductivist and instrumentalist analyses of the justification for fiduciary duties. Finding them wanting, it offers an alternative account of the juridical justification for fiduciary duties. The author contends that the fiduciary relationship is a distinctive kind of legal relationship in which one person (the fiduciary) exercises power over practical interests of another (the beneficiary). Fiduciary power is a form of authority derived from the legal capacity of the beneficiary or a benefactor. The duty of loyalty is justified on the basis that it secures the exclusivity of the beneficiary’s claim over fiduciary power so understood.

Confrontation and Compulsory Process: U.S. and European Approaches Compared

2012 ◽  
Vol 9 (2) ◽  
Author(s):  
William E. O'Brian
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Sixth Amendment ◽  
Hearsay Rule ◽  
The Right ◽  
The Relationship ◽  
The U.S

This paper discusses the relationship between the English hearsay rule and the principles governing the right to a fair trial under Article 6 of the European Convention on Human Rights. While the provisions serve similar purposes, they do not always produce the same result. Two sorts of cases are discussed: cases where the hearsay rule admits evidence that should be excluded because it violates the defendant’s right to examine or have examined the witnesses against him, and cases where the hearsay rule excludes evidence that should be admitted to protect the defendant’s right to a fair trial. The treatment of these cases is contrasted to the treatment of similar cases under the Sixth Amendment to the U.S. Constitution.

14. Fiduciary Obligations

2019 ◽  
pp. 668-722
Author(s):  
Paul S Davies ◽  
Graham Virgo
Keyword(s):  
Best Interests ◽  
High Court ◽  
Fiduciary Obligations ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships ◽  
Definition Of ◽  
High Court Of Australia ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter begins with a definition of fiduciary relationships as presented by a retired judge of the High Court of Australia, Sir Anthony Mason. According to Mason, the relationship is a ‘concept in search of a principle’. Fiduciary relationships are voluntary, and some relationships, such as solicitor–client, are well recognized as fiduciary in nature. However, fiduciary relationships can arise in a wide variety of situations. A fiduciary owes a duty of loyalty to his or her principal, always acting in the best interests of said principal. Fiduciary obligations are strict, and any profits made by the fiduciary in breach must be disgorged to his or her principal. Where the profits are made from property that rightfully belonged to the trust, a constructive trust may be imposed upon the profits.

Fiduciary Law and Equity

2019 ◽  
pp. 743-762
Author(s):  
Henry E. Smith
Keyword(s):  
Contract Law ◽  
Higher Order ◽  
High Variability ◽  
Second Order ◽  
Fiduciary Duty ◽  
Private Law ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships ◽  
The Relationship

This chapter explores the relationship between fiduciary law and equity, focusing on an idea that largely determines the place of fiduciary law in private law: that fiduciary law is equitable. In this regard, the term “equitable” implies that fiduciary law serves a characteristic equitable function, a function that solves problems of high variability and uncertainty through higher-order or metalaw. The prominent role played by second-order law in general and the equitable function in particular is what makes fiduciary law special among areas of private law. This chapter first identifies problems addressed by second-order law, and shows how the fiduciary relationships are equitably second order, especially for trustees, other categorical fiduciaries, and fact-specific fiduciaries. It then considers the duty of loyalty as a second-order duty equitably regulating the performance of primary duties and how fiduciary remedies for breach of fiduciary duty (for example, disgorgement) are equitably second order in a way that many prototypically private law remedies are not. Finally, it examines constructive trusts as a second-order aspect of fiduciary remedies and fiduciary law’s relation to contract law.

scholarly journals Challenges Faced by the Clayton County, Georgia Public Defender’s Office

2017 ◽  
Vol 6 (1) ◽  
pp. 48
Author(s):  
James F. Anderson ◽  
Christine A. VanDross, Esq. ◽  
Kelley Reinsmith-Jones ◽  
Adam H. Langsam
Keyword(s):  
Federal Courts ◽  
Expert Witnesses ◽  
Public Defender ◽  
Legal Representation ◽  
Public Defenders ◽  
The Public ◽  
Adequate Funding ◽  
Sixth Amendment ◽  
Legal Defense ◽  
The U.S

While the Sixth Amendment to the U.S. Constitution guarantees indigent defendant’s legal representation in state and federal courts, public defenders’ offices are challenged by the lack of resources to represent an endless flow of clients, attract and retain talented counsel, enlist the help of expert witnesses, as well as deliver the best quality defense. This study addresses the daily strain of defending clients who are not always the most cooperative in helping their own defense, but it also reveals the struggles and challenges faced by an urban southern public defender’s office and what changes need to be implemented to improve the public defender system. In the end, this study finds that public defender programs need adequate funding to fully deliver a quality legal defense.

Historical Introduction

1977 ◽  
Vol 35 ◽  
pp. 2-5
Author(s):  
R. D. Heidenreich
Keyword(s):  
Electron Emission ◽  
Secondary Electron ◽  
Secondary Electron Emission ◽  
50Th Anniversary ◽  
Secondary Emission ◽  
Wave Nature ◽  
Nobel Prize In Physics ◽  
Primary Electrons ◽  
The U.S ◽  
Mutual Agreement

This program has been organized by the EMSA to commensurate the 50th anniversary of the experimental verification of the wave nature of the electron. Davisson and Germer in the U.S. and Thomson and Reid in Britian accomplished this at about the same time. Their findings were published in Nature in 1927 by mutual agreement since their independent efforts had led to the same conclusion at about the same time. In 1937 Davisson and Thomson shared the Nobel Prize in physics for demonstrating the wave nature of the electron deduced in 1924 by Louis de Broglie.The Davisson experiments (1921-1927) were concerned with the angular distribution of secondary electron emission from nickel surfaces produced by 150 volt primary electrons. The motivation was the effect of secondary emission on the characteristics of vacuum tubes but significant deviations from the results expected for a corpuscular electron led to a diffraction interpretation suggested by Elasser in 1925.

Variations in Surface Textures of Quartz Sand using Electron Microscopy

1970 ◽  
Vol 28 ◽  
pp. 494-495
Author(s):  
Eugene J. Amaral
Keyword(s):  
Electron Microscopy ◽  
Glass Industry ◽  
Glass Slide ◽  
Distilled Water ◽  
Early Paleozoic ◽  
Secondary Effects ◽  
Surface Textures ◽  
High Silica ◽  
Sand Deposit ◽  
The U.S

Examination of sand grain surfaces from early Paleozoic sandstones by electron microscopy reveals a variety of secondary effects caused by rock-forming processes after final deposition of the sand. Detailed studies were conducted on both coarse (≥0.71mm) and fine (=0.25mm) fractions of St. Peter Sandstone, a widespread sand deposit underlying much of the U.S. Central Interior and used in the glass industry because of its remarkably high silica purity.The very friable sandstone was disaggregated and sieved to obtain the two size fractions, and then cleaned by boiling in HCl to remove any iron impurities and rinsed in distilled water. The sand grains were then partially embedded by sprinkling them onto a glass slide coated with a thin tacky layer of latex. Direct platinum shadowed carbon replicas were made of the exposed sand grain surfaces, and were separated by dissolution of the silica in HF acid.

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