Leonard Rotman, ‘Fiduciary Law’s “Holy Grail”: Reconciling Theory and Practice in Fiduciary Jurisprudence’

Fiduciary law has experienced tremendous growth over the past few decades. However, its indiscriminate and generally unexplained use, particularly to justify results-oriented decision making, has created a confused and problematic jurisprudence. Fiduciary law was never intended to apply to the garden variety of cases. Rather, it was established for use only where the laws of contract, tort and unjust enrichment were silent or deficient. Yet, even in those circumstances, it applied solely in regard to socially or economically important or necessary interactions of high trust and confidence creating implicit dependency and peculiar vulnerability. This Article lays the foundation for developing a more sound fiduciary jurisprudence by identifying the “holy grail” that unites the theory of fiduciary obligations with its practical application. It demonstrates how fiduciary law may properly facilitate situationally-appropriate justice in ways that the ordinary laws of civil obligation cannot. Further, it establishes an enhanced understanding of fiduciary law that both complements the laws of contract, tort, and unjust enrichment and is consistent with fiduciary law’s historical and theoretical foundations.

Rotman, Leonard I., Fiduciary Law’s ‘Holy Grail’: Reconciling Theory and Practice in Fiduciary Jurisprudence (November 22, 2010). Boston University Law Review, Vol. 91, No. 3, 2011.

First posted 2011-09-11 09:18:27

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