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Monday, September 11, 2006

Friends as Fiduciaries

As part of my "Friendship & the Law" research agenda, I'm seeking to vindicate the claim I make in my first pass at the research project that friends can be treated as fiduciaries for certain purposes.   If any of you know of fabulous articles on fiduciary duties that I absolutely must read, please send along your recommendations.  Although we needn't treat this request as part of our "Research Canons" project, I'd very much like to read the canonical articles and books on the subject. 

As is probably obvious, I'll be developing an argument against the likes of Larry Ribstein, who claim that we should be very stingy about finding fiduciary relationships and that we should limit them to situations when a party contractually agrees to become  a fiduciary.  Although my argument for extended fiduciary duties of friendship ultimately emerges from a theory about friendship rather than a theory about fiduciary duties, I will need, I think, to say something about how my policy recommendation is consistent with a persuasive account of fiduciary duties.  That account could not be the thoroughly contractual fiduciary of Ribstein's imagination; it would have to be a more deeply relational and status-based account.  Help in this regard in particular would be most appreciated.

Posted by Ethan Leib on September 11, 2006 at 09:00 PM in Corporate | Permalink


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Weinrib, "The Fiduciary Obligation" (1975), 25 U.T.L.J. 1

Posted by: A | Sep 11, 2006 9:12:39 PM

I posted a very brief comment on the nature of friendship and fiduciary over at http://kennethandersonlawofwar.blogspot.com/2006/09/fiduciaries-and-friends.html#links. KA

Posted by: Kenneth Anderson | Sep 11, 2006 11:49:08 PM

I have written a book on Fiduciary Law that argues for a more expansive use of the fiduciary concept than what is articulated by authors such as Ribstein. The URL is:


Please drop me a note if you would like to chat further about this. I am always interested in making connections with people interested in fiduciary law.


Posted by: Leonard Rotman | Sep 12, 2006 9:46:28 AM

Hi Ethan,

I have a few recommendations:

--Deborah DeMott, "Beyond Metaphor: An Analysis of Fiduciary Obligation" 1988 Duke L.J. 879
--Tamar Frankel, "Fiduciary Law" 71 Cal. L. Rev. 795
--Gordon Smith, "The Critical Resource Theory of Fiduciary Law" 55 Vand. L. Rev. 1399

Posted by: Darian Ibrahim | Sep 12, 2006 12:29:05 PM

I wrote my law review Note (published in the spring) on an aspect of fiduciaries. In my research, here are some sources I'd recommend:

F.W. Maitland, Equity: A Course of Lectures on Equity (A.H. Chaytor & W.J. Whittaker eds., Cambridge Univ. Press 2d ed. 1949) (1909)

L.S. Sealy, Fiduciary Relationships, 1962 Cambridge L.J. 69

Kenneth B. Davis, Jr., Judiciary Review of Fiduciary Decisionmaking: Some Theo-retical Perspectives, Part I, 80 Nw. U.L. Rev. 1 (1985)

Eileen Scallen, Promises Broken vs. Promises Betrayed: Metaphor, Analogy, and the New Fiduciary Principle, 1993 U. Ill. L. Rev. 897

Scott FitzGibbon, Fiduciary Relationships Are Not Contracts, 82 Marq. L. Rev. 303 (1999)

Robert Flannigan, The Fiduciary Obligation, 9 Oxford J. Legal Stud. 285 (1989)

And let's not forget cases, including of course: Meinhard v. Salmon, 249 N.Y. 458 (1928).

Posted by: Writer on Topic | Sep 12, 2006 2:16:10 PM

In my view, to mount a reasonable challenge to the contractarians, you need what courts and commentators have yet to articulate - a theory (or at least an outline of a theory) of the fiduciary relationship. To hold water, it would need 1) to be broad enough to capture the range of relationships recognized at law as fiduciary (something the contractarian accounts cannot do, focused as they typically are on corporate fiduciary relationships); and 2) to explain and justify the imposition of specific fiduciary duties (especially loyalty). I'm working on just such a theory now, but I am not sure that friendship would fall within its scope. In any event, I think the gauntlet for noncontractarian accounts of fiduciary obligation was effectively laid by Easterbrook and Fischel in 'Contract and Fiduciary Duty'. You should read that, for sure. I've also found Rotman's text a useful resource. It has at least three key selling points: 1) his research is very extensive; 2) it is recent; 3) he is very knowledgeable about non-US case law and commentary. The latter is especially important, because US commentary is often very insular, and commonwealth countries have seen extensive debate over key points of doctrine in courts and the academy. I am happy to discuss further.

Posted by: Paul Miller | Sep 15, 2006 1:03:46 PM

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