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date: 18 September 2020

(p. xviii) (p. xix) Introduction

The Oxford Handbook of Fiduciary Law has four principal objectives. First, it offers an accessible synthesis of fiduciary law across the many contexts in which fiduciary principles arise. Second, it provides in a single volume a standard reference for understanding the content, nature, function, and structure of fiduciary principles. Third, it shows that fiduciary law may be understood as a coherent field unto itself, confirming the importance of a research agenda in fiduciary law, as compared to piecemeal study of fiduciary principles in different fields. Fourth, it supplies new historical, comparative, and interdisciplinary perspectives on fiduciary law.

The context for the Handbook is the rise of a movement toward understanding fiduciary law as its own field. Until recently, fiduciary principles have been treated as subsidiary elements of a broad array of fields. Thus, lawyers, judges, and commentators have been inclined to speak of the fiduciary duties of, say, a trustee, an agent, or a director within the context of trust law, agency law, or corporate law without giving much attention to the broader nature and function of fiduciary principles.

To be sure, some commentators have given attention to the common architecture of fiduciary principles across varied applications, and some have undertaken to explain why the particulars of fiduciary principles vary from one field to another. But these efforts have been hampered by the tendency to treat each context in which fiduciary principles arise as a separate area of study. In this first generation of fiduciary scholarship, most experts in fiduciary law were in truth specialists in discrete fiduciary fields, such as trust law or corporate law, rather than generalists with a synoptic view of the broad terrain of fiduciary law. When such a scholar gave attention to fiduciary law generally, she was naturally inclined to approach the subject from the blinkered perspective of her specialty.

Lately, however, the study of fiduciary law has undergone a paradigm shift. A burgeoning group of scholars has undertaken to study fiduciary law as a coherent general field of study that encompasses aspects of both private and public law. This (p. xx) core group has been joined by fellow travelers who have been drawn into the emerging project through their specialization in one of the discrete fields in which fiduciary principles arise. Many of the leading voices in this growing movement are contributors to the Handbook.

Meanwhile, 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 still more assets. Fiduciary principles have 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 to conduct business on the person’s behalf. Fiduciary principles also apply to some of our most intimate relationships, including those between parents and children, and 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 are everywhere.

The Oxford Handbook of Fiduciary Law thus arrives at an opportune moment for the study and practice of fiduciary law. Case law and academic commentary have progressed to the point that it is now possible to generate a detailed mapping of the field. To this end, the Handbook aspires to provide a near-encyclopedic survey of the terrain, focusing primarily on U.S. jurisprudence but also incorporating perspectives from other legal traditions. The purpose of the Handbook, in short, is to furnish a single source to which readers can turn for guidance on fiduciary principles across a host of substantive fields, jurisdictions, and epochs.

Producing a book of such breathtaking scope and ambition is, of course, well beyond the capacity of any single author. Only a community of scholars with diverse perspectives and areas of expertise could hope to do it. Accordingly, the Handbook’s editors enlisted fifty-three of the foremost experts on fiduciary law to prepare forty-eight chapters addressing an astonishingly wide variety of topics. Together, these contributors bring a dazzling array of scholarly talents to bear, providing fresh commentary on established jurisprudence and opening new territory for future exploration. Many of the Handbook’s authors gathered for a conference at Harvard Law School in November of 2017 for the purpose of sharing their contributions and coordinating their insights. The Handbook is, therefore, very much the product of a collective endeavor. In its breadth and depth of coverage, it stands alone as a uniquely authoritative guide to the current state of the law and scholarship in the field.

The Handbook’s chapters are grouped thematically into four parts. Part I provides a survey of fiduciary principles across diverse contexts, ranging from trust and corporate (p. xxi) law, to family law and the law of lawyering, to public offices and public international law. Part II identifies and synthesizes several fundamental principles of fiduciary law that apply across these contexts, including the core fiduciary duties of loyalty and care. Part III explores how fiduciary principles have developed across time and in different legal traditions. Finally, Part IV considers how different legal theories, interdisciplinary approaches, and social institutions may contribute to the academic study and development of fiduciary law.

I. The Doctrinal Canon

Part I surveys fiduciary principles across the doctrinal canon. The purpose of these chapters is to explain when fiduciary principles arise and how they govern specific relationships, such as principal-agent, trustee-beneficiary, and director-corporation. 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 of the chapters 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 any 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.

This part begins with a chapter by Daniel B. Kelly on fiduciary principles in “fact-based” fiduciary relationships. Unlike relationships that are fiduciary as a matter of status (e.g., principal-agent, trustee-beneficiary, director-corporation), fact-based fiduciary relationships involve cases in which a court must analyze the particular facts and circumstances on an ad hoc basis to determine whether application of fiduciary principles is warranted. Kelly demonstrates that courts consider a variety of factors—including the degree of entrusted discretion, whether one party relies on the other’s expertise, and whether the parties have a preexisting social or personal relationship—in assessing whether a given relationship is fiduciary. Once a court identifies a fact-based fiduciary relationship, traditional fiduciary duties tend to apply with full force.

The next chapters in Part I discuss how fiduciary principles operate in a variety of status-based fiduciary relationships that are of central concern to private law. These chapters analyze how judges and policymakers have applied—and, in some cases, adapted—fiduciary principles to different kinds of relationships. Deborah A. DeMott’s chapter explains how agency law has incorporated fiduciary principles in idiosyncratic ways that reflect the principal’s power to direct and supervise the agent and the agent’s power to bind the principal. Robert H. Sitkoff’s chapter surveys fiduciary principles in trust law—arguably the most fully developed subfield of fiduciary law, and the font from which fiduciary principles in many other fields arose. Julian Velasco presents (p. xxii) fiduciary principles in corporate law as striking a delicate balance between principle and practicality. Mohsen Manesh follows with a detailed description of the fiduciary principles that govern unincorporated business entities, including general partnership, limited partnerships, and limited liability companies. Lastly, Lloyd Hitoshi Mayer draws readers into the world of charitable and other nonprofit organizations, showing how fiduciary duties apply in these institutions under both federal and state law.

These surveys are followed by others that examine how fiduciary principles apply within fields of commercial activity: banking, investment advice, pension administration, employment, and bankruptcy and insolvency. Andrew F. Tuch describes how banks may assume fiduciary duties when they act variously as an agent, trustee, investment adviser, or escrow holder of funds. Arthur B. Laby shows how the regulation of investment advisers as fiduciaries reflects the complex interplay between multiple legal regimes, including the common law of trusts and agency, federal and state statutes, and a growing body of administrative regulations. Dana M. Muir, in turn, takes readers on a tour of federal pension law, showing how the Employment Retirement Income Security Act of 1974 generates distinctive fiduciary norms that derive from state trust law. Surveying employment law, Aditi Bagchi explains when employees are fiduciaries of their employers and reviews the fiduciary principles that apply where employees are beneficiaries of employment-related pension plans, employee stock-ownership plans, and welfare benefit plans. John A. E. Pottow rounds out this group of chapters with a wide-ranging discussion of fiduciary principles in bankruptcy and insolvency. In each of these fields, professionals operate along a porous border between arm’s-length and fiduciary relationships, as well as between status-based and fact-based fiduciary relationships, often performing multiple roles simultaneously.

A third grouping of chapters in Part I considers how fiduciary principles apply to relationships typified by special intimacy and confidentiality. Elizabeth S. Scott and Ben Chen argue that, although fiduciary principles apply to close familial relationships, family law relies primarily on informal bonding and monitoring mechanisms rather than judicial enforcement of fiduciary duties. Nina A. Kohn canvasses fiduciary principles across three categories of surrogate relationships: guardians and conservators, agents acting under powers of attorney for finances or health care, and representative payees and other government-appointed fiduciaries. Richard W. Painter discusses how the fiduciary duties of lawyers have been shaped by tensions between lawyers’ dual roles as advocates for their clients and as officers of the court. Turning to the health care industry, Mark A. Hall explains which health care professionals bear fiduciary duties and discusses the scope of those duties. These chapters illustrate how lawmakers adapt fiduciary norms and enforcement mechanisms in particular settings in an effort to balance deference to personal autonomy and professional expertise against fiduciary law’s traditional governance functions.

Part I concludes with three chapters that address fiduciary principles in public law. The past two decades have witnessed a groundswell of interest in public fiduciary theory. The chapters collected here show how fiduciary principles have shaped public law in the past, and they explain why applying fiduciary principles to public officers and (p. xxiii) institutions in the present is consistent with the general concept of fiduciary representation. Ethan J. Leib and Stephen R. Galoob begin by discussing public offices, focusing on how fiduciary norms are embodied in the Emoluments Clauses of the U.S. Constitution, administrative law, and the law of judging. D. Theodore Rave considers the application of fiduciary principles to the state, including the Indian Trust Doctrine, the Public Trust Doctrine, administrative law, and constitutional law. Finally, Evan J. Criddle discusses international law’s reliance on fiduciary principles from the colonial era to the present, including contemporary applications in the law governing international territorial administration, military occupation, state sovereignty, and diplomatic agents. Collectively, this set of chapters offers a nuanced account of the promise and the risks associated with integrating fiduciary principles into public law.

Some readers may be disappointed by a few notable omissions. For example, Part I does not address the fiduciary duties of joint venturers, bailees, or collective bargaining agents. It does not explain under what circumstances courts will treat educators, accountants, or members of the clergy as fiduciaries. Nor does Part I assess the potential duties of “information fiduciaries,” a fresh idea that is gaining traction in scholarly and policy debate. In the absence of time and space constraints, we would have liked to include treatments of these and other topics. Nonetheless, we trust that the breadth of coverage in Part I will furnish the reader with a good sense of fiduciary law’s time-honored conventions, its current tensions and controversies, and its open horizons.

All told, Part I demonstrates that fiduciary principles provide essential legal infrastructure for a wide variety of relationships involving the care, custody, and administration of persons, property, and organizations. One cannot properly understand fiduciary law as a coherent whole without attending to its many fields of application. Until now, however, it has been difficult to get the measure of fiduciary law precisely because of the sheer number and variety of fields touched by fiduciary principles. A key contribution of Part I, therefore, is to reduce the barrier to entry to fiduciary law writ large, inviting generalist analysis of fiduciary law as a coherent whole.

II. A Conceptual Synthesis of Fiduciary Law

To say that an area of law has been rendered amenable to generalist analysis is to suggest that there is a coherent subject to analyze; in this case, that there is a body of fiduciary law rather than a mere aggregate of fiduciary laws. Is there such a body of law? If so, how does one isolate and articulate that which makes it cohere? The collective contribution of the chapters in Part II is to take an important step forward in answering these questions.

Using familiar processes of inductive reasoning, the chapters in Part II engage in synthetic analysis of conceptual patterns that hold across the fiduciary doctrinal canon. (p. xxiv) To the extent that these patterns admit of parsimonious explanation in light of discrete legal principles, there is good reason to think fiduciary law taken in whole is structured accordingly. Ultimately, Part II identifies five principles of general application that distinguish fiduciary law as a field of law.

First, synthetic analysis of “triggering” conditions for fiduciary liability shows that fiduciary duties arise only if a fiduciary relationship has been formed, and further that the scope of those duties reflects the contours of the underlying relationship. The chapter by Paul B. Miller makes this point in canvassing the methods by which the law identifies certain relationships as being fiduciary in nature. Miller notes that, in general, a relationship is identified (or ruled out) as fiduciary through one of two methodologies: on the basis of presumed characteristics within a particular category of relationship (status-based identification), or on a one-off basis given the actual characteristics of the relationship (fact-based identification). Each of these two methodologies may be used by judges through a combination of direct characterization, analogical reasoning, and definitional argument.

Second, synthetic analysis of fiduciary liability rules indicates that fiduciary law contemplates at least two kinds of legal fault—want of loyalty and want of care. These kinds of fault, in turn, presuppose the existence of two kinds of legal duty—a duty of loyalty and a duty of care. Analysis of these two core fiduciary duties—undertaken by Andrew S. Gold and John C. P. Goldberg, respectively—indicates that each is a general fiduciary duty, as each arises upon the formation of a fiduciary relationship irrespective of type or context. At the same time, however, these chapters show that the content of each duty varies by context, reflecting field-specific adaptation of general principles of fiduciary loyalty and care. Moreover, the Goldberg chapter identifies unique aspects of a fiduciary’s duty of care that differentiate that duty from the duty of care imposed by tort law.

Third, synthetic analysis indicates that some seemingly independent grounds of fiduciary fault may not suggest the existence of further independent fiduciary duties. Several scholars have queried whether, in addition to duties of loyalty and care, fiduciary law might also recognize other duties, such as duties of disclosure, recordkeeping, and confidence. To be sure, a fiduciary can be liable for a violation of fiduciary rules relating to disclosure, recordkeeping, or maintaining confidences. But do these and other such fiduciary rules emanate from stand-alone fiduciary duties? Robert H. Sitkoff’s chapter in this part examines the nature and function of these “other” fiduciary duties. Drawing on theories of rules and standards, Sitkoff argues that the fiduciary duties other than loyalty and care are best understood as subsidiary or implementing principles that give more specific content to the more general duties of loyalty and care as applied to commonly recurring circumstances across particular types or kinds of fiduciary relationships. By applying overlapping rules and standards to the same conduct, fiduciary law improves on the familiar trope that rules and standards are competing governance strategies.

Fourth is the question of mandatory rules. To some, the hallmark of an independent field of law is the existence of mandatory rules that are constitutive of it. Daniel Clarry’s (p. xxv) chapter investigates the imperativeness of fiduciary principles. The specific question considered by Clarry is the extent to which fiduciary principles are instantiated through mandatory rules. Consistent with the widespread intuition that “loyalty” is the central positive and normative construct in fiduciary law, Clarry finds that core features of the duty of loyalty are mandatory across the various types and kinds of fiduciary relationship, and that these core features of the duty of loyalty are the only mandatory principles in fiduciary law.

Fifth, one need not subscribe to Holmes’s “bad man” theory of the law to understand that a focus on primary liability rules tells only part of the story. Samuel L. Bray’s chapter surveys the remedial landscape in fiduciary law, and in so doing it tells us a great deal about the nature and function of fiduciary law. Injunctive and supervisory remedies, for example, show that the law treats a fiduciary as having made a binding undertaking with respect to the performance of the fiduciary’s mandate. From a remedial perspective, therefore, a fiduciary may be compelled to make good on these undertakings, or be removed, even if the beneficiary does not allege breach of duty. Similarly, the availability of gain-based remedies beyond compensatory remedies reinforces loyalty’s centrality to fiduciary law, and with it, the positive and normative force of the beneficiary’s expectation that a fiduciary’s powers must be exercised only for the benefit of the beneficiary.

III. Fiduciary Law across History and Legal Systems

The work of the contributors in Parts I and II, canvassing and synthesizing fiduciary law, is selective in one important sense: it focuses for the most part on contemporary U.S. law to the exclusion of other jurisdictions and time periods. This is an inevitable limitation. It would be impossible to restate fiduciary law in a succinct, comprehensive, and credible way across history and jurisdictions.

Nevertheless, 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 across time and legal traditions. 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.

This last lesson is taught powerfully by the contributors to Part III. Rich with expert analysis by leading legal historians and comparativists, the chapters in Part III show how different legal systems have embraced and extended fiduciary principles in their own unique ways over time.

We begin with history. American fiduciary law, like that of other former British colonies, evolved from English common law and equitable doctrine. In his chapter tracing (p. xxvi) the development of fiduciary doctrine in English law, Joshua Getzler shows how modern fiduciary principles may be traced to centuries-old legal requirements of accounting, according to which persons occupying positions of power were made to account, through a variety of mechanisms, for the manner in which they exercised their power. Getzler also notes that English law received notions of fiduciary responsibility, in part, from civil and canon law conceptions of fiducia as relationships involving the legal entrustment of persons and property. This claim receives further support from Richard H. Helmholz’s careful analysis of fiduciary concepts in canon law. Helmholz notes that canon law knew nothing of fiduciary law as an encompassing category. Yet various antecedents of modern fiduciary principles may be found in substantive canon law as well as frameworks for the institutional governance of the medieval church. David Johnston draws similar conclusions about fiduciary ideas in Roman law, where loyalty-type rules attached to antecedents of modern status-based fiduciary relationships, including the fideicommissum and tutela.

Many private law concepts, such as promissory obligation and restitution, have corollaries in religious law. Our contributors have established that the same is true of fiduciary law. Thus, in addition to the Helmholz chapter on canon law, Mohammad Fadel reports that classical Islamic law is suffused with fiduciary principles and features variants on modern status-based fiduciary relationships, including agency, charities, and even public fiduciaries. Likewise, Chaim N. Saiman points to sources of classical Jewish law that take interest in relationships in which one person has power over the property of another. He emphasizes that Jewish law takes a distinctive approach to concerns about abuse of power: a reliance on oaths of fidelity and social sanctions.

Turning to comparative perspectives, Part III again finds evidence of both similarity and variation across legal systems. Matthew Conaglen’s chapter on fiduciary principles in contemporary common law systems shows widespread cross-jurisdictional agreement on core status-based categories of fiduciary relationships and the centrality of proscriptive rules to fiduciary loyalty. But he also reveals cross-jurisdictional disagreement on questions such as whether fiduciary law protects noneconomic interests and includes a distinctively fiduciary duty of care. By comparison, the contribution by Martin Gelter and Geneviève Helleringer acknowledges that most contemporary civil law jurisdictions do not recognize fiduciary law as a cohesive field, but powerfully demonstrates that fiduciary relationships and fiduciary duties are nonetheless implicit in civil law.

Further cementing the theme of variation balanced by parallels is a set of chapters on fiduciary principles in contemporary Chinese, Indian, and Japanese law by Nicholas C. Howson (China), Vikramaditya S. Khanna (India), and J. Mark Ramseyer and Masayuki Tamaruya (Japan). These chapters sound caution in noting that fiduciary law is not recognized as a formal category in these legal systems. Yet certain kinds of relationships—many of which have direct or indirect parallels in American law—are treated as raising governance problems associated with the possession and exercise of other-regarding power. And these problems are often addressed in familiar ways, such as by rules requiring disclosure, compelling accountability, demanding avoidance of conflict, and threatening restitution.

(p. xxvii) IV. The Future of Fiduciary Law and Theory

Part IV imagines the future of fiduciary law and theory from a variety of fresh perspectives. The chapters in this part can be grouped into four clusters. The first considers how insights from other academic disciplines may enrich the study of fiduciary law. Among the disciplinary lenses applied to fiduciary law, economic analysis has long dominated. Richard R. W. Brooks’s chapter explores the strengths and weaknesses of three theoretical tracts in the tradition of law and economics, which explain fiduciary loyalty as a function, respectively, of narrow self-interest, personal character, and allegiance to relationships or associations. Other chapters challenge the hegemony of economic analysis by exploring alternatives. Charlie Webb shows how philosophical analysis can illuminate fiduciary principles and the moral reasons that might explain and justify them. Tess Wilkinson-Ryan mines experimental psychology for insights that support and challenge basic assumptions of fiduciary theory. Finally, Jonathan Klick and Max M. Schanzenbach provide a survey of empirical studies on fiduciary law in three key areas—corporate governance, fiduciary investment, and medical malpractice—and offer a methodological primer for future empirical work.

A second cluster of chapters seeks to isolate and analyze core norms, concepts, and structural principles in fiduciary law. In recent years, fiduciary theorists have vigorously debated fiduciary law’s theoretical foundations. Is fiduciary law defined by certain formal rules or jurisprudential commitments? Is it based on moral or social norms? Or is fiduciary law a shapeshifting chameleon without an essential normative core? The answers to these questions are by no means obvious. Some fiduciary theorists have argued that fiduciary law is a repository of fuzzy standards that enable judges to respond creatively to context-specific threats of opportunism. Others have advanced more theoretically ambitious accounts of fiduciary law based on core structural features of fiduciary relationships, the moral or social norms that fiduciary duties fortify, or fiduciary law’s contributions to social welfare or justice. That the foundations of fiduciary law remain controversial (some would argue, quixotically elusive) has only made the challenge of articulating them all the more tantalizing for legal theorists.

Several chapters in Part IV cast new light on fiduciary theory’s basic questions. Henry E. Smith argues that private fiduciary law functions as an equitable “second-order law” or “metalaw” that regulates the manner in which fiduciaries perform their primary duties. Hillary A. Sale likewise emphasizes fiduciary law’s equitable character, but she focuses on a different application—how the duty of good faith in U.S. corporate law imposes certain controls on fiduciary representation and safeguards important public interests. James Penner contends that fiduciary law has a complex and, at times, equivocal relationship with moral norms of trust, loyalty, and good faith. Matthew Harding makes the case that fiduciary law reinforces social norms of trust and loyalty, while also guaranteeing outcomes consistent with those norms in their absence. (p. xxviii) Sung Hui Kim argues that fiduciary law’s core concern has always been more concrete: removing temptations for “corruption,” the abuse of entrusted power for self-regarding gain. Finally, Hanoch Dagan notes the diversity of fiduciary relationships discussed in Part I and makes the case that fiduciary law is best understood as a heterogeneous legal category defined by deep normative and structural pluralism.

Each of these chapters repays close attention. For readers encountering fiduciary theory for the first time, we hope these chapters will provide an accessible point of entry and will inspire further engagement. At the same time, experts will find illumination in the chapters’ creative responses to fiduciary theory’s persistent puzzles.

A third cluster of chapters in Part IV examines the development of fiduciary principles in specific regulatory contexts. These chapters invite readers to consider fiduciary duties as instruments deployed in furtherance of political or public policy objectives. Howell E. Jackson and Talia B. Gillis explain how the U.S. government has generated a complex body of fiduciary law for financial institutions through the overlapping regulatory actions of Congress, the federal courts, and administrative agencies such as the Department of Labor, the Office of the Comptroller of the Currency, and the Securities and Exchange Commission. Lawrence A. Hamermesh and Leo E. Strine, Jr. chronicle the evolution of Delaware corporate law, arguing that the fiduciary jurisprudence of the Delaware Supreme Court reflects an enduring commitment to two principles: (1) courts should allow corporate fiduciaries to experiment and take risks, and (2) courts should protect stockholders from exploitation arising from fiduciaries’ conflicts of interest. Both chapters vividly illustrate how the idiosyncratic mandates of public institutions, changes in the marketplace, and the ebb and flow of scandal have informed the development of fiduciary law.

The final cluster of chapters in Part IV points directly toward the future. The authors take up the challenge to look beyond the current state of fiduciary law and theory and identify promising areas for further doctrinal development and scholarly research. The resulting contributions by Paul B. Miller and Evan Fox-Decent map out “new frontiers” for private and public fiduciary law, respectively. Miller’s contribution identifies a wide array of questions to be addressed as a matter of conceptual, normative, sociolegal, economic, and empirical analysis of private fiduciary law. He also outlines an agenda for understanding points of intersection between fiduciary and other categories of private law obligation. Fox-Decent argues that fiduciary principles can shed new light on a host of conceptual and practical problems in national, international, and transnational law, and fruitfully reframe democratic theory and timeworn jurisprudential debates about the nature of law.

This final pair of chapters suggests that the Handbook arrives at a pivotal moment. With fiduciary principles now firmly established in dozens of substantive fields and proliferating in legal systems throughout the world, fiduciary law is poised to take its place alongside contract law, tort law, property law, constitutional law, and other fields as a distinctive field of legal study and practice. As fiduciary law continues to expand and (p. xxix) to consolidate its influence, the prospects for accelerating doctrinal innovation, transnational cross-fertilization, and scholarly inquiry appear very bright indeed.


All told, this Handbook collects within a single volume a set of forty-eight authoritative essays on the doctrinal canon of fiduciary law, its core principles, its history and application across legal systems, and prevailing theories and methodological approaches to it. The expert analyses assembled in this volume break new ground while setting a new standard of academic rigor and comprehensiveness. The sheer number of leading scholars who have contributed to the volume by itself offers powerful evidence that fiduciary law has come into its own.

We anticipate that the Handbook will speak to many audiences. The most obvious comprises academic lawyers. As a consolidated statement of the state of the art in fiduciary learning, the Handbook promises to shape the research agenda in fiduciary studies for years to come. Law teachers could use the Handbook as a supplement in a basic fiduciary law course or as the main text in a seminar. Practicing lawyers, judges, and policymakers should also find the Handbook an invaluable resource, as it clarifies the law’s demands and provides rich historical and comparative context for formulating and evaluating law reform proposals. However the Handbook is used, we trust that readers will take away a greater appreciation for the many vital contributions that fiduciary law makes to modern society—from boardrooms and courtrooms to the halls of government.