Andrew Gold, ‘The Reasonably Loyal Person’

This chapter is a contribution to a book on John Gardner’s work in private law theory. The chapter takes up a puzzle that Gardner raised: why is there no ‘reasonably loyal trustee’ in fiduciary law? Notably, he proposes that the role of a trustee might lack a law-independent counterpart. That, in turn, could make it impossible for trust law (and by implication, fiduciary law) to ‘pass the buck’ to whatever it is that the ‘reasonably loyal person’ would do. I will suggest that fiduciary relationships frequently do have law-independent counterparts, and moreover that such counterparts can evolve over time. Relatedly, I will argue that a wide range of extra-legal conceptions of loyalty are available for buck passing purposes; not all loyalty is built on a prior meaningful relationship between a loyal party and the object of her loyalty. Lastly, I will conclude with some thoughts on why buck passing could be valuable.

Gold, Andrew S, The Reasonably Loyal Person (September 28, 2021). Haris Psarras and Sandy Steel (eds), Private Law and Practical Reason: Essays on John Gardner’s Private Law Theory (Oxford University Press, forthcoming 2022).

First posted 2021-10-02 12:00:11

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