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.

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.

15. Decision-Making

2020 ◽  
pp. 397-408
Author(s):  
Geoffrey Morse ◽  
Thomas Braithwaite
Keyword(s):  
Decision Making ◽  
Good Faith ◽  
Decision Making Process ◽  
Natural Justice

This chapter explains how an LLP makes decisions, identifying the sorts of decisions that require unanimity and the sorts of decisions that can be decided by a majority. It considers how a decision-making power must be exercised, and the extent to which fetters such as good faith, rationality and natural justice will impact on the decision-making process. Lastly, it considers what the consequences of an unlawful decision are.

Fiduciary Law, Good Faith, and Publicness

2019 ◽  
pp. 762-779
Author(s):  
Hillary A. Sale
Keyword(s):  
Case Law ◽  
Corporate Law ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Red Flags ◽  
Corporate Development ◽  
Duty Of Loyalty ◽  
Trust Law

This chapter uses corporate law as a case study to evaluate the content of the fiduciary duty of good faith. Tracing its development from Van Gorkom through to the present, the chapter shows how good faith, though part of the duty of loyalty, has become a gap filler, policing the space between generally exculpated breaches of care and the more obvious breaches of loyalty. This chapter also surveys good faith case law to show the most common “red flags” for which corporate officers and directors should be monitoring. An analysis of two of the most recent good faith cases—City of Birmingham and In re Wells Fargo—show how the theory of publicness can be used to predict future good faith developments. Finally, the chapter ends by showing that the duty of good faith’s expansion into trust law parallels its corporate development by emphasizing its gap-filler function.

Fiduciary Principles in Contemporary Common Law Systems

2019 ◽  
pp. 564-582
Author(s):  
Matthew Conaglen
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Standards Of Care ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Similarities And Differences ◽  
Fiduciary Relationships

This chapter examines the principles of fiduciary doctrine that are found in contemporary common law systems. More specifically, it considers the current similarities and differences between various jurisdictions such as England, Australia, Canada, and the United States. The similarities focus on the duties of loyalty, care and skill, and good faith, as well as when fiduciary duties arise and the kinds of interests that are protected by recognition of fiduciary relationships. The chapter also discusses the issue of differences between various jurisdictions with regard to the duty of care and skill before concluding with an analysis of differences between remedies that are made available in the various contemporary common law jurisdictions when a breach of fiduciary duty arises. It shows that the regulation of fiduciaries appears to be reasonably consistent across common law jurisdictions and across various types of actors, even as such actors are expected to meet differing standards of care. Statute plays a key role in the regulation of various kinds of fiduciary actors, especially corporate directors.

The contamination of trauma. Traumatized minds, broken families and dysfunctional work groups: Organizational and interpersonal dynamics in complex child welfare court proceedings

2021 ◽  
pp. 053331642110150
Author(s):  
Stuart Stevenson
Keyword(s):  
Decision Making ◽  
Work Groups ◽  
Work Group ◽  
Best Interests ◽  
Organizational Dynamics ◽  
Children And Families ◽  
Vulnerable Children ◽  
History Of ◽  
Adults And Children ◽  
Court Proceedings

Professional work groups engaging with traumatized and dysfunctional families are presented with a disproportionate challenge to an already inevitably painful process that can be an obstacle to balanced decision-making in the children’s best interests. Trauma, abuse and neglect can influence the professional culture that condenses around these families. This occurs more often with the most challenging families with a possible history of professional failure resulting in professional conflict, impulsive and poor decision-making due to the occasions that these destructive dynamics have become unmanageable. Serious case reviews into the deaths of children regularly outline professional failures relating to a breakdown in communication within the professional system and essential and potential lifesaving information having been lost or failing to have been acted upon. The ability to understand complex group and organizational dynamics and the ability to manage relationships with traumatized adults and children, as well as within traumatized work groups is, therefore, an essential skill set for professionals working with the most vulnerable children and families. This article explores trauma and its impact on a work group and why this process was disturbed by uncontained anxiety resulting in professional conflict.

The moral and political economy of suicide prevention

2021 ◽  
pp. 144078332110011
Author(s):  
Scott J Fitzpatrick
Keyword(s):  
Decision Making ◽  
Political Economy ◽  
Suicide Prevention ◽  
Social Practices ◽  
Economic Systems ◽  
Moral Norms ◽  
Policy Practice ◽  
Political Relations ◽  
Norms And Values ◽  
The Way

Suicide prevention occurs within a web of social, moral, and political relations that are acknowledged, yet rarely made explicit. In this work, I analyse these interrelations using concepts of moral and political economy to demonstrate how moral norms and values interconnect with political and economic systems to inform the way suicide prevention is structured, legitimated, and enacted. Suicide prevention is replete with ideologies of individualism, risk, and economic rationalism that translate into a specific set of social practices. These bring a number of ethical, procedural, and distributive considerations to the fore. Closer attention to these issues is needed to reflect the moral and political contexts in which decision-making about suicide prevention occurs, and the implications of these decisions for policy, practice, and for those whose lives they impact.

Of Love and Laetrile: Medical Decision Making in a Child's Best Interests

1979 ◽  
Vol 5 (3) ◽  
pp. 269-294
Author(s):  
Eve T. Horwitz
Keyword(s):  
Decision Making ◽  
Medical Treatment ◽  
Burden Of Proof ◽  
State Intervention ◽  
Convincing Evidence ◽  
State Agency ◽  
Best Interests ◽  
Medical Decision ◽  
Appropriate Treatment ◽  
Life Threatening

AbstractTwo recent cases have raised important questions concerning the appropriateness of state intervention in parental choices of unorthodox medical treatment for children with life-threatening conditions. This Note first discusses whether, and if so, when, state intervention in a child's treatment selection by its parents is appropriate, and then analyzes the tests a court should apply in deciding upon an appropriate treatment. The Note recommends a decision-making approach that requires the appropriate state agency to prove, by clear and convincing evidence, that the parents' choice of medical treatment either is directly or is indirectly harming their child. Under this approach, if the state meets its burden of proof the court then must apply the ‘best interests’ test, rather than the ‘substituted judgment’ test, to choose an appropriate medical treatment for the child.

The Relation of Language Context and Religiosity to Trilemma Judgments

2021 ◽  
pp. 002202212110339
Author(s):  
Elyas Barabadi ◽  
Mohsen Rahmani Tabar ◽  
James R. Booth
Keyword(s):  
Decision Making ◽  
Second Language ◽  
Native Speakers ◽  
Native Language ◽  
Standard Measure ◽  
Moral Norms ◽  
The Individual ◽  
Language Context

Utilitarian judgments maximize benefit for the most people, whereas deontological judgments are based on moral norms. Previous work shows that people tend to make more utilitarian judgments in their second compared to their native language, whereas higher religiosity is associated with more deontological judgments. However, it is not known whether the effect of language context is moderated by the religiosity of the individual. We hypothesized that more religious participants from all three languages would favor deontological choices irrespective of language context. In order to investigate this, we studied native speakers of Persian who either had Arabic or English as their second language, and all participants were given a standard measure of religiosity. Decision making was measured by the classic trolley trilemma in which a participant could “push” a person to save the lives of more people which is considered a utilitarian judgment. Alternatively, they could “switch” a track to save the lives of more people (“indirect”), or do nothing (“inaction”), both of which are considered deontological. Consistent with the literature showing more utilitarian judgments in the second language, English participants preferred the push option, whereas Persian participants favored the inaction option. L2 Arabic participants more often chose the indirect option. However, participants’ religiosity moderated this effect of language context. Although L2 Arabic participants’ choices were not influenced by religiosity, higher religiosity in the L2 English and L1 Persian groups was associated with more deontological choices.

Piercing the Corporate Veil: The Responsibility of Member states of an International Organization

2011 ◽  
Vol 8 (2) ◽  
pp. 291-347 ◽  
Author(s):  
Odette Murray
Keyword(s):  
Decision Making ◽  
Member State ◽  
International Law ◽  
International Organizations ◽  
Good Faith ◽  
International Organization ◽  
Member States ◽  
Draft Article ◽  
Legal Limit ◽  
Primary Rule

AbstractThis paper applies two manifestations of the principle of good faith – pacta sunt servanda and the doctrine of abuse of rights – to the complex relationship between member states and international organizations. The paper argues that these existing doctrines operate as a legal limit on the conduct of states when creating, controlling and functioning within international organizations. The paper begins by exploring an innovative provision in the International Law Commission's recently finalised Draft Articles on the Responsibility of International Organisations – Draft Article 61 – according to which a member state will bear international responsibility for the act of an international organization where the member state uses the organization to circumvent its own international obligations. Examining the development of Draft Article 61 and the jurisprudence upon which it is based, this paper argues that the principle which the Commission in fact seeks to articulate in Draft Article 61 is that of good faith in the performance of treaties. As such, being based on a primary rule of international law, this paper queries whether Draft Article 61 belongs in a set of secondary rules. The paper then considers the role of states in the decision-making organs of international organizations and argues that the widely held presumption against member state responsibility for participation in decision-making organs can and should be displaced in certain cases, in recognition of the various voting mechanisms in international organizations and the varied power which certain states may wield. The paper argues that the doctrine of abuse of rights operates as a fundamental legal limit on the exercise of a member state's voting discretion, and thereby forms a complementary primary obligation placed on states in the context of their participation in international organizations.

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