The Rise of Fiduciary Law as a Field of Study

In recent years, the study of fiduciary law has undergone a paradigm shift. Rather than treat fiduciary principles as subsidiary elements of various fields of law, such as trust law or corporate law, a burgeoning group of scholars has undertaken to study fiduciary law as a coherent, general field of study that encompasses aspects of private and public law. Case law and academic commentary have progressed to the point that it is now possible to generate a detailed mapping of the field.

In this spirit, we are delighted to announce the publication of The Oxford Handbook of Fiduciary Law, a landmark work that offers unparalleled coverage of fiduciary principles across the many fields of law in which they arise. Working with a dream team of over 50 leading scholars, we have designed the handbook as a rich practical resource that should be of value to legal practitioners, judges, students, and scholars. The handbook provides a near-encyclopedic survey of the terrain, emphasizing U.S. jurisprudence but also incorporating perspectives from other legal traditions. In its breadth and depth of coverage, the handbook stands alone as a uniquely authoritative guide to the field.

Fiduciary principles are of ever-growing importance in practice. Trillions of dollars are subject to fiduciary investment principles, for example, and state and federal regulators are at work extending those principles to the administration of still more categories of assets. Fiduciary principles have also taken center stage in recent debates over the law and ethics of public corruption—including possible conflicts of interest and profiteering at the highest levels of the executive, legislative, and judicial branches of government. Increasingly, therefore, fiduciary principles have become the subject of front-page news, high-stakes litigation, and vigorous political debate.

These headline-grabbing examples should not, however, overshadow the fact that fiduciary principles also govern many of the workaday relationships that shape our daily lives. For example, fiduciary principles routinely apply when a person receives treatment from a doctor, consults with a psychologist, retains a lawyer, or appoints an agent. Fiduciary principles also apply to some of our most intimate relationships, including those between parents and children as well as those between persons with diminished capacity and their guardian-caregivers. The astonishingly broad array of fiduciary relationships canvassed in the handbook drives home the point that fiduciary principles have pervasive reach.

We have now posted the book’s Introduction, Table of Contents, and Table of Contributors on SSRN. (Previously we posted on SSRN the substantive chapters written by us on trusts, international law, identifying fiduciary relationships, other fiduciary duties, and possible new frontiers in private fiduciary law.) The introduction takes notice of fiduciary law’s emergence as a general field of study and explains the handbook’s ambition and contributions to the field. These contributions are grouped thematically into four parts.

First, the handbook surveys fiduciary principles across diverse contexts, ranging from agency law and the law of investment advice, to family law and the law of lawyering, to public offices and public international law. The purpose of these chapters is to explain when fiduciary principles arise and how they govern specific relationships. Most of the chapters follow a similar organizational template to facilitate comparison and to provide a sturdy doctrinal footing for the rest of the book. Thus, most begin with a treatment of the trigger for application of fiduciary principles followed by discussion of the duty of loyalty, the duty of care, and other fiduciary rules that manifest in the field at issue. The chapters generally close with analysis of the extent to which fiduciary principles are mandatory or default and with discussion of the remedies available for breach of duty. Taken together, these chapters suggest that some structural features, legal norms, and remedies are common across fiduciary relationships.

Second, the handbook identifies and synthesizes several fundamental principles of fiduciary law that apply across these contexts, including the core fiduciary duties of loyalty and care. The chapters in this part engage in synthetic analysis of conceptual patterns that hold across the fiduciary doctrinal canon. To the extent that these patterns admit of parsimonious explanation in light of discrete principles, there is good reason to think fiduciary law taken in whole is structured accordingly.

Third, the handbook explores how fiduciary principles have developed across time and in different legal traditions. Legal concepts do not exist in a vacuum. They are developed over time and shared across jurisdictions. Cultivating an appropriately broad and robust understanding of fiduciary principles thus requires an appreciation of their evolution. The idea that fiduciary law is a distinctive field that is amenable to synthetic analysis is relatively new. However, the core ideas upon which fiduciary law is based, such as the importance of constraining the abuse of other-regarding power, have resonated across diverse legal systems for millennia.

Fourth, the handbook considers how different legal theories, interdisciplinary approaches, and social institutions may contribute to the academic study and development of fiduciary law. The chapters of this part imagine the future of fiduciary law and theory from a variety of fresh perspectives. These chapters thus consider how insights from other academic disciplines may enrich the study of fiduciary law. They seek to isolate and analyze core norms, concepts, and structural principles in fiduciary law. They cast new light on fiduciary theory’s basic questions. They examine the development of fiduciary principles in specific regulatory contexts. And they point directly toward the future.

All told, the handbook furnishes a single source to which readers can turn for guidance on fiduciary principles across a host of substantive fields, jurisdictions, and epochs.

This post comes to us from professors Evan J. Criddle at William & Mary Law School, Paul B. Miller at Notre Dame Law School, and Robert H. Sitkoff at Harvard Law School.  The Oxford Handbook of Fiduciary Law is available here and here.