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The Law of Loyalty
This monograph elucidates common legal principles underlying the use of juridical powers. It addresses both public law and private law, and examines both the common law and the civil law. It aims to provide a theory of how Western law regulates the situations in which we hold legal powers, not for ourselves, but for and on behalf of others. It does this by elucidating the justificatory principles that are attracted in those situations. These principles include that other-regarding powers can only properly be used for the purposes for which they were granted; that they should not be used when the holder is in a conflict of self-interest and duty, or a conflict of duty and duty; and that the holder is presumptively accountable for any profits extracted from the other-regarding role. These principles stand behind the detailed legal rules that govern these relationships in multiple legal systems and in multiple public and private settings. In private law this includes the powers of trustees, corporate directors, agents and mandataries; in public law it includes all powers held for public purposes, whether they be held by the Prime Minister, by a police officer, or by a judge.
Aspects of Loyalty
One of the many current controversies around fiduciary obligations is whether the duty of care and skill owed by a fiduciary is properly called a fiduciary duty. Another is what is the content of the fiduciary duty of good faith, and whether it stands apart from the duty of loyalty, or rather is merely an aspect of it. This paper builds on recent work that identifies loyalty as a legal requirement for fiduciary decision-making, which is not, however, a Hohfeldian duty. This understanding calls for further investigation into the other aspects of the legal implementation of loyalty. In relation to both the duty of care and the duty of good faith, the paper asks why it might matter whether such duties were fiduciary duties, or duties of loyalty, and how we can properly answer these questions. It concludes that there are several aspects to how the law implements loyalty.
The Duty of Loyalty in Trust Law
The duty of loyalty has been a bedrock principle of trust law for hundreds of years. More recently, it has been applied outside the traditional trust sphere to a widening array of fiduciary relationships in the wealth management business. Questions concerning the nature and scope of the duty have arisen with increasing frequency and are affecting how wealth management services are delivered. New and emerging iterations of the duty of loyalty have not departed from the fundamental trust law principle that the interests of the fiduciary must be subordinated to those of the client. Nevertheless, subtle distinctions in the way the duty is interpreted may result in significant differences in the ...
The Oxford Handbook of Fiduciary Law
The Oxford Handbook of Fiduciary Law provides a comprehensive overview of critical topics in fiduciary law and theory through chapters authored by leading scholars. The Handbook opens with surveys of the many fields of law in which fiduciary duties arise, including agency law, trust law, corporate law, pension law, bankruptcy law, family law, employment law, legal representation, health care, and international law. Drawing on these surveys, the Handbook offers a synthetic analysis of fiduciary law's key concepts and principles. Chapters in the Handbook explore the defining features of fiduciary relationships, clarify the distinctive fiduciary duties that arise in these relationships, and ide...
The Duty of Loyalty in Chinese Trust Laws
This article examines the meaning of the duty of loyalty as stipulated in the Trust Law of the People's Republic of China and its supplementary regulations. The analysis of the 'meaning' here is based on an exploration of three specific questions: what is the content and scope of the duty of loyalty; what function(s) does the duty of loyalty perform; and, what remedies are available for breach of the duty of loyalty? Where appropriate, comparisons with the duty of loyalty in the Chinese Company Law and common law jurisdictions will be conducted to delineate the unique characteristics of the duty of loyalty in Chinese trust laws. Based on such analysis, this article thenillustrates the relationship between the function(s) of the duty of loyalty and existing remedies available for breach of this duty. The aim of doing so is two-fold: to better understand what it is that distinguishes the duty of loyalty from other kinds of duties, and to identify the shortcomings that can be observed in the operation of the duty of loyalty in the current legal framework.
Loyalty's Core Demand
The duties owed by independent directors of large corporations to monitor the corporation's affairs have never had more political salience. Given the Enron-era debacles, the recent meltdown in our nation's financial sector, the dependence of workers on equity investments to secure their retirements, the globalization of American corporate law principles, and the complexity of managing corporations with international operations, the legal standards used to evaluate whether directors have complied with their fiduciary duties will be a subject of growing international policy interest. This article addresses an important dimension of that issue by examining the role of good faith in corporate la...
Comparative Company Law
Presents in-depth, comparative analyses of German, UK and US company laws illustrated by leading cases, with German cases in English translation.
Employee Duty of Loyalty
"Employment Rights and Responsibilities Committee, Section of Labor and Employment Law, American Bar Association."
A Duty of Loyalty for Privacy Law
Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of people has now become a major element of the Internet's business model. Academics and policymakers have recently proposed a possible solution: require those entrusted with peoples' data and online experiences to be loyal to those who trust them. But critics and companies have concerns about a duty of loyalty. What, exactly, would such a duty of loyalty require? What are the goals and ...
