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INTENTIONS, COMPLIANCE, AND FIDUCIARY OBLIGATIONS*

  • Stephen R. Galoob (a1) and Ethan J. Leib (a2)

Abstract

This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to the possibility of “accidental compliance.” Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of fiduciary loyalty is best described by what we call the “shaping” account. This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing fiduciary obligations. “Contractarianism” configures fiduciary obligations as a species of contractual duties. The view that we call “proscriptivism” reduces fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of fiduciary loyalty.

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Footnotes

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Thanks to our home institutions for financial support and to, among others, Craig Agule, Russell Christopher, Ken Ehrenberg, Mel Eisenberg, Bob Fischer, Andrew Gold, Sam Halabi, Adam Hill, Simon Keller, Jody Kraus, Arthur Laby, Matt Lamkin, Lionel Smith, Bob Spoo, Rebecca Stone, Steve Thel, R. Jay Wallace, Rob Weber, Gideon Yaffe, and Benjamin Zipursky for useful feedback. Matthew Schwartz provided research support and Larry Abraham provided library support. A conference on the philosophical foundations of fiduciary law in the summer of 2013 at DePaul University provided inspiration and focus; a Fiduciary Law Workshop in 2014 at McGill University provided a fabulous audience to workshop the draft. Thanks, finally, to the journal's reviewers for their comments, which improved the final manuscript.

Footnotes

References

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1. See Easterbrook, Frank H. & Fischel, Daniel R., Contract and Fiduciary Duty, 38 J.L. & Econ. 438 (1993); Langbein, John H., The Contractarian Basis of the Law of Trusts, 105 Yale L.J. 625 (1995); Hansmann, Henry & Mattei, Ugo, The Functions of Trust Law: A Comparative Legal and Economic Analysis, 73 N.Y.U. L. Rev. 434 (1998). Our terminology here conflates contract-based accounts with promise-based accounts, which some theorists separate. See, e.g., Jonathan R. Macey, Corporate Governance: Promises Kept, Promises Broken (2010).

2. See Conaglen, Matthew, The Nature and Function of Fiduciary Loyalty, 121 Law Q. Rev. 452, 459460 (2005); Jensen, Darryn, Prescription and Proscription in Fiduciary Obligations, 21 King's L.J. 333 (2010).

3. See David Owens, Shaping the Normative Landscape (2012).

4. See, e.g., Clark, Robert C., Agency Costs versus Fiduciary Duties, in Principals and Agents 55, 7576 (Pratt, John W. & Zeckhauser, Richard J. eds., 1985).

5. See Easterbrook & Fischel, supra note 1, at 427, 428 n.6.

6. See Restatement (Second) of Contracts §17 (1982).

7. See Shiffrin, Seana Valentine, The Divergence of Contract and Promise, 120 Harv. L. Rev. 708 (2007).

8. See, e.g., Bayer v. Beran, 49 N.Y.S.2d 2, 5 (Sup. Ct. 1944); Birnbaum v. Birnbaum, 539 N.E.2d 574, 576 (N.Y. 1989).

9. See Tamar Frankel, Fiduciary Law (2011), at 169–173.

10. See, e.g., Miller, Paul, Justifying Fiduciary Duties, 58 McGill L.J. 969 (2013); Weinrib, Ernest J., The Fiduciary Obligation, 25 U. Toronto L.J. 1 (1975).

11. Whether our conclusions about loyalty's intentional dimension apply to the duty of care depends on whether “care” is defined in terms of an objective standard (behaving in the way that a careful person would behave) or a more subjective standard (being careful). To preview our later argument about loyalty, it seems possible to be careful accidentally if an objective standard applies, and impossible to be careful accidentally if a subjective standard applies. We largely sidestep this issue in this article. Some legal contexts (e.g., corporate law) define carefulness in terms of an objective standard, while others (e.g., the law governing lawyers) seem to define it in a more subjective way. See, e.g., Restatement (Third) of the Law Governing Lawyers §16(1) (requiring a lawyer's representation to “proceed in a manner reasonably calculated to advance a client's lawful objectives, as defined by the client after consultation”).

12. E.g., R. Jay Wallace, Responsibility and the Moral Sentiments (1994); Strawson, P.F., Freedom and Resentment, 48 Proc. Brit. Acad. 1 (1960); Stephen Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability (2006).

13. For example, it licenses a particular grievance by the person to whom the obligation was directed. See, e.g., Kolodny, Niko & Wallace, R. Jay, Promises and Practices Revisited, 31 Phil. & Pub. Aff. 119 (2003).

14. Because we address the intentional dimensions of promissory and fiduciary obligations specifically, one more preface is in order. Our discussion of the relevance of intention to compliance is neutral on the question of whether, in general, intention is central to determining the permissibility of an action. Our view is also neutral on whether intention generally determines the moral worth of an action. Rather, our inquiry concerns whether intention is fundamental to complying with certain kinds of obligations. One might assert that in general, intentions do not directly determine permissibility or moral value while maintaining that intentions matter to whether an action constitutes acting loyally or keeping a promise.

15. See Joseph Raz, Practical Reason and Norms (1999), at 178; Hershovitz, Scott, Legitimacy, Democracy, and Razian Authority, 9 Legal Theory 201 (2003); Owens, supra note 3, at 15. Our distinction between these terms is at odds with common legal usage, which sees compliance and conformity as synonymous.

16. See generally Setiya, Kieran, Reasons and Causes, 19 Eur. J. Phil. 129, 135 (2011). Donald Davidson provides the following example of wayward causation:

A climber might want to rid himself of the weight and danger of holding another man on a rope, and he might know that by loosening his hold on the rope he could rid himself of the weight and danger. This belief and want might so unnerve him as to cause him to loosen his hold.

Donald Davidson, Essays on Actions and Events (1980), at 73. In Davidson's example, the desire to be rid of the other man figures into the explanation of why the climber loosens his grip, but indirectly rather than in the standard way that reasons figure into the explanation of our actions.

17. See Gettier, E. L., Is Justified True Belief Knowledge?, 23 Analysis 121 (1963).

18. Here we follow Raz and Hershovitz, who argue that “in general reasons are reasons for conformity and not compliance.” Hershovitz, supra note 15, at 202 n.4 (citing Joseph Raz, The Authority of Law (1979), at 179–182).

19. This plausibility arises out of the epistemic costs of attaching intentional requirements to obligations. If satisfying an obligation has an intentional dimension, then determining whether someone has lived up to her obligation is a complicated matter. It is not enough to look at the pattern of her behavior. We must also look to her deliberations or motivations, each of which is notoriously difficult to discern (perhaps even introspectively). These epistemic costs are not as daunting in the kinds of intimate settings where loyalty is most commonly invoked, as we argue below. However, given that promises apply to both intimate and arms-length transactions, these epistemic costs of monitoring might well be counterproductive. Thus it makes sense that a structural aspect of promises would not impose costs that only a subset of promisees would find useful. Moreover, it seems possible to add intentional dimensions to promises, for example, by including deliberative requirements within the content of the promise or else undertaking another modality (like a vow or an oath) that more plausibly has an intentional dimension “off the shelf.”

20. Owens, supra note 3, at 90–91 (noting that conscientious agency requires respecting a promise by “giving it the right role in . . . deliberations,” although respecting a promise does not necessarily involve fulfilling it); id. at 91–92 (“One who takes their promises at all seriously will sometimes fulfill, sometimes respect, and sometimes acknowledge them. Conscientiousness is a matter of degree and only someone who neither respects nor acknowledges promises and fulfils them by accident alone is totally devoid of it.”).

21. See generally T.M. Scanlon, What We Owe to Each Other (1998), at 302–309.

22. Id. Scanlon's invocation of fidelity transforms the focus of promise-keeping from mere behavior into something that resembles loyalty.

23. Pratt, Michael G., Promises, Contract, and Voluntary Obligations, 26 Law & Phil. 531, 569–70 (2007). Alternatively, one might argue that the accidental complier discharges her promissory obligation without living up to it. This seems to be Michael Stocker's position. See Stocker, Michael, Intentions and Act Evaluations, 67 J. Phil. 589, 601 (1970) (“One can adequately and fully and completely discharge an obligation without performing a morally good act, without acting with or from a good, much less a conscientious, intention.”).

However, Pratt ultimately understands accidental compliance to be a “discharge of a duty,” and Stocker concedes the possibility of “full[] and complete[] discharge” without intentional requirements. Even Raz's conforming/complying distinction hints that conformity substantially satisfies promissory obligations: the promisee has no valid complaint and is owed no remedy if the promisor has conformed. Promises paradigmatically involve conveying objects, acting in certain ways, or bringing about states of affairs. If a promisor conveys, acts, or effectuates the relevant state of affairs, then she has kept the promise. Accidental compliance is a way of discharging one's obligation. Perhaps it is not the best way, but it is a way that both law and morality acknowledge.

Vows may work differently, as they seem to carry with them an implied demand of loyalty to a person or project. Imagine the spouse who sets out one night to engage in adultery with a new interest but whose date gets called away for an emergency surgery. From one perspective—the promissory perspective—the spouse did not violate the promise not to cheat (assuming that monogamy was promised). But the accidental compliance with the vow falls short of the spirit of fidelity. The marriage vow seems to require more than accidental compliance.

This feature of vows, however, counts in favor of the idea that ordinary promissory obligations do not have an intentional dimension. A vow can be seen as a way to add an intentional dimension to a promise, to ensure compliance when conformity is not enough. If promises had an intentional dimension “off the shelf,” then this feature of vows would be otiose.

24. Chiles v. Robertson, 767 P.2d 903, 911–912 (Or. Ct. App. 1989).

25. In re Disney, 906 A.2d 27, 67 (Del. 2006). To be sure, there are plenty of cases holding that good faith and good intentions are not sufficient conditions for loyalty. See Boardman v. Phipps, [1967] 2 A.C. 46 (H.L.); Regal (Hastings) v. Gulliver, [1967] 2 A.C. 134n (H.L.). But our argument is that certain kinds of intentions are necessary rather than sufficient for acting loyally.

26. Thus we do not mean to assert that intentions are all that matter to loyalty. Our claim is merely that no full account of loyalty can deny its intentional components.

27. Simon Keller, The Limits of Loyalty (2007), at 3.

28. Our description of the shaping account of loyalty is drawn from T.M. Scanlon's account of the shaping function of wrongness. See Scanlon, T.M., Wrongness and Reasons: A Re-examination, in 2 Oxford Studies in Metaethics 5 (Shafer-Landau, Russ ed., 2007). For Scanlon, the judgment that an action is morally wrong should bear on the deliberation of a moral agent in a particular way. To judge that an action is wrong is to see it as “not providing eligible reasons for action,” rather than as “outweighed by some powerful ‘reason to be moral’ that is triggered by the fact that the action would be wrong.” Id. at 7–8. Scanlon's formula identifies a deliberative or agential component to the moral value of action that is short of seeing intentions as directly determining whether an action is permissible. Ultimately, Scanlon contends, there would be something defective about an agent's moral deliberation if it were not shaped by considerations of wrongness in this way.

29. See Rawls, John, Kantian Constructivism in Moral Theory, 77 J. Phil. 515, 543 (1980) (construing people as “self-originating sources of claims” to mean that “their claims carry weight on their own without being derived from prior duties or obligations owed to society or to other persons, or, finally, as derived from, or assigned to, their particular social role”).

30. See Bernard Williams, Persons, Character, and Morality, in Moral Luck 18 (1982).

31. Id. For Williams, one major shortcoming of utilitarianism is that its theory of value implies that only considerations of welfare can have nonderivative significance; everything else can matter only derivatively.

32. There are many varieties of loyalty other than fiduciary loyalty, including partisanship, patriotism, filial loyalty, and professional loyalty. Keller, supra note 27, at x. We make no claim about whether the shaping account described here also characterizes loyalty in all of these guises nor whether (as Keller denies) there are any meaningful unifying features of loyalty.

33. We phrase these elements of the “shaping” account as necessary rather than sufficient conditions to leave open the possibility that loyalty might have other requirements in both nonfiduciary and nonlegal contexts. See, e.g., Gold, Andrew S., The New Concept of Loyalty in Corporate Law, 43 U.C. Davis L. Rev. 457, 491 (2009) (noting the possibility that loyalty could involve “being true” to a particular project or relationship type); Keller, supra note 27, at 16 (positing that motive of loyalty “depends upon or makes essential reference to a special relationship” in which subject and object stand).

34. The shaping account can also explain why theorists who posit an intentional dimension to promises (like Owens, Pratt, and Scanlon) can recognize an asymmetry between promise-keeping and loyalty. For these theorists, keeping a promise might plausibly require attributing significance to the interests of the promisee, thus ruling out the possibility of accidental promise-keeping. Yet none of these accounts of promise-keeping could require that this significance be nonderivative or robust. Consider a scenario where A promises B to Φ. In such a case, it seems possible for A to keep her promise even though B's interests figure only derivatively into A's reasons for action (e.g., where all that matters to A is the intrinsic importance of Φ’ing and not the importance of Φ’ing to B). Also, in Φ’ing, A might be said to keep her promise to B even though A lacks a disposition to have made or kept a different promise to γ should B have needed or requested that promise. Because the asymmetry between promise-keeping and loyalty is key to our critiques of contractarianism and proscriptivism in Section IV, the shaping account supports our main points even if one denies our conclusion in Section II about the intelligibility of accidentally complying with promissory obligations.

35. See Scallen, Eileen A., Promises Broken vs. Promises Betrayed: Metaphor, Analogy, and the New Fiduciary Principle, 1993 U. Ill. L. Rev. 897, 910 n.48, 911 (1993); Smith, D. Gordon, The Critical Resource Theory of Fiduciary Duty, 55 Vand. L. Rev. 1399, 14831484 (2002).

36. We refrain here from discussing even more demanding standards that would require identification with a beneficiary. If the adopting and aiming accounts fall short, then such an “identification” account would also.

37. Laby, Arthur B., The Fiduciary Obligation as the Adoption of Ends, 56 Buff. L. Rev. 100, 103 (2008).

38. Id. at 142.

39. Id. at 148.

40. 2 The Trial of Queen Caroline (J. Nightingale ed., Albion Press, 1820–1821), at 8.

41. Laby, supra note 37, at 135 (“The fiduciary must appropriate the objectives, goals, or ends of another and then act on the basis of what the fiduciary believes will accomplish them—a happy marriage of the principal's ends and the fiduciary's expertise.”).

42. See, e.g., George Fletcher, Loyalty: An Essay on the Morality of Relationships (1995), at 38–39 (discussing duties generated by various aspects of loyalty); Oldenquist, Andrew, Loyalties, 79 J. Phil. 173 (defending obligations based on loyalties).

43. See Gert, Bernard, Loyalty and Morality, in Nomos LIV: Loyalty 19 (Levinson, Sandy, Parker, Joel & Woodruff, Paul eds., 2013) (“Loyalty is morally acceptable only when it does not involve violating a moral rule.”).

44. See Arthur Isak Applbaum, Ethics for Adversaries (1999), at 3. On bootstrapping of reasons generally, see Broome, John, Are Intentions Reasons? And How Should We Cope with Incommensurable Values?, in Practical Rationality and Preference: Essays for David Gauthier 98120 (Morris, Christopher & Ripstein, Arthur eds., 2001); Michael E. Bratman, Intentions, Plans and Practical Reasons (1999).

45. See Shiffrin, Seana Valentine, Moral Overridingness and Moral Subjectivism, 109 Ethics 772 (1999).

46. See, e.g., Kolodny, Niko, Which Relationships Justify Partiality? The Case of Parents and Children, 38 Phil. & Pub. Aff. 37 (2010); Almond, Brenda, Reasonable Partiality in Professional Relationships, 8 Ethical Theory & Moral Prac. 155, 166 (2005).

47. See Pettit, Philip, The Paradox of Loyalty, 25 Am. Phil. Q. 163, 168 (1988) (“Loyalty can hardly require the agent to prize the individual essence of the principal; on the contrary, it is compatible with severe reservations about his particular worth. What it demands is rather susceptibility to the fact that the principal is, relatively speaking, one of his own.”).

48. See Laby, supra note 37, at 130 (“The fiduciary's adoption of the principal's ends, regardless of the overall consequences of doing so, is the unifying theme in fiduciary cases.”).

49. See Smith, Lionel, The Motive, Not the Deed, in Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn 53 (Getzler, Joshua ed., 2003).

50. Id. at 67.

51. Id. at 70–71.

52. Id. at 64.

53. Strine, Leo E., et al., Loyalty's Core Demand: The Defining Role of Good Faith in Corporate Law, 98 Geo. L.J. 629, 633 (2010). Strine et al. make this point in service of a larger argument that the Delaware corporate law fiduciary duty of loyalty presupposes that the fiduciary act in “good faith,” which in turn requires that the fiduciary be “motivat[ed] to serve the legitimate interests of those to whom fiduciary duties are owed.” Id. at 663–664.

54. See Leib, Ethan J., Responsibility and Social/Political Choices about Choice, 25 Law & Phil. 453 (2006).

55. Smith, supra note 49 at 74.

56. See, e.g., Schwitzgebel, Eric, The Unreliability of Naïve Introspection, 117 Phil. Rev. 245, 247 (2008) (“Contemporary philosophers and psychologists often doubt the layperson's talent in assessing such nonconscious mental states as personality traits, motivations and skills, hidden beliefs and desires, and the bases of decisions; and they may construe such doubts as doubts about introspection.”). Many of the findings questioning the reality of privileged introspective access arise in social psychology and moral psychology. Whether introspection provides privileged access to one's motivations is a highly contested question. However, even those who believe in the possibility of robust self-knowledge can accept that agents are often prone to self-deception about why they act. Irit Samet draws on (mostly philosophical) research about self-deception to make a similar point that structural features of the fiduciary relationship render fiduciaries especially prone to self-deception (and as a result, self-dealing) in conflict-of-interest scenarios. See Samet, Irit, Guarding the Fiduciary's Conscience—A Justification of a Stringent Profit-Stripping Rule, 28 Oxford J. Legal Stud. 763, 781 (2008),

57. See Kavka, Gregory S., The Toxin Puzzle, 43 Analysis 33 (1983); Hieronymi, Pamela, Controlling Attitudes, 87 Pac. Phil. Q. 45, 63 (2006). Indeed, the psychological difficulty of controlling the reasons for which one acts (coupled with a commitment to the slogan that “ought implies can”) lead some to reject the notion that motive matters for rightness at all. See, e.g., W. David Ross, The Right and the Good (2002), at 4–5.

58. As David Owens puts it, the “capacity to determine which reasons have weight in [one's] practical deliberation and which do not” is a requirement of practical agency, of being “fully in control of [one's] practical reasoning.” Owens, supra note 3, at 88–89.

59. Still, we acknowledge that the shaping standard might present some legitimate concerns about fairness, because whether an agent is counterfactually disposed to deliberate in a certain way might not be fully within her control.

60. Indeed, we can envision a variety of situations where such self-conscious detachment from a role (or, as Meir Dan-Cohen describes it, “role distance”) could have salutary effects. See Meir Dan-Cohen, Harmful Thoughts (2002), at 235.

61. In recent work Smith rejects the aiming account. See Lionel Smith, Can We Be Obliged to Be Selfless?, in The Philosophical Foundations of Fiduciary Law (Andrew Gold & Paul Miller eds., forthcoming 2014). In the terms we use here, Smith acknowledges that there is an intentional dimension to fiduciary loyalty but denies that this dimension is defined solely (or at all) by the motives of the agent. Smith rejects the aiming account largely for its incompatibility with Kantian notions of duties. For Smith, fiduciary loyalty is a duty of right, and (on Kant's framework) motives are irrelevant to determining whether one has lived up to a duty of right. Although we agree with Smith's rejection of the aiming account, we think that Smith goes too far in completely denying the relevance of motives. As we discuss below, some motivations can bear on whether one has acted loyally, although in many cases a wide variety of motivations are compatible with acting loyally. Moreover, we disagree with Smith's reasons for rejecting the aiming account—namely, the goal of compatibility with Kantian notions of duties. The shaping account that we defend here is inconsistent with the Kantian framework because it sees loyalty as a duty of right (in that loyalty is both directed and legally enforceable) yet allows for the possibility that someone's motives could bear directly on whether she acts loyally.

62. See Kolodny, Niko, Why Be Rational?, 114 Mind 509 (2005).

63. Smith, Can We Be Obliged to Be Selfless?, supra note 61.

64. See Keller, supra note 27, at 21 (“There are many different ways of being loyal; a particular loyalty may involve any of several kinds of motive, so long as they have a certain basic structure.”).

65. See, e.g., Gert, supra note 43, at 7 (“Motives for loyalty must not depend upon beliefs about the consequences for oneself of showing loyalty.”).

66. See Langbein, supra note 1, at 650; Easterbrook & Fischel, supra note 1; Edelman, James, When Do Fiduciary Duties Arise?, 126 Law Q. Rev. 302 (2010).

67. Ribstein, Larry E., Fencing Fiduciary Duties, 91 B.U. L. Rev. 899, 902 (2011).

68. To the extent that some aspects of contractual and fiduciary obligations are not modifiable (e.g., unconscionability and good faith in contract, and good faith in fiduciary law), the contractarian can argue that these parallel each other. As we explain below, however, these good-faith obligations likely differ in their content, so the superficial parallel here is more complicated than it looks.

69. See generally Butler, Henry N. & Ribstein, Larry E., Opting out of Fiduciary Duties: A Response to the Anti-Contractarians, 65 Wash. L. Rev. 1 (1990).

70. See Schwartz, Alan & Watson, Joel, Conceptualizing Contract Interpretation, 42 J. Legal Stud. 1 (2013); Thel, Steve & Siegelman, Peter, Willfullness versus Expectation: A Promisor-Based Defense of Willful Breach Doctrine, 107 Mich. L. Rev. 1517 (2009).

71. See, e.g., Frankel, Tamar, How to Water Down Fiduciary Duties, in The Philosophical Foundations of Fiduciary Law (Gold, Andrew & Miller, Paul eds., forthcoming 2014).

72. See FitzGibbon, Scott, Fiduciary Relationships Are Not Contracts, 82 Marq. L. Rev. 303 (1999); Markovits, Daniel, Sharing Ex Ante and Ex Post, in The Philosophical Foundations of Fiduciary Law (Gold, Andrew & Miller, Paul eds., forthcoming 2014).

73. One intriguing implication of our analysis is that the intentional aspects of loyalty may not be disclaimable in whole or in part. In some legal environments, the duty of loyalty itself can be disclaimed altogether. Our analysis might imply that this legal doctrine is fundamentally mistaken. However, even if it were possible to disclaim the duty of loyalty itself, it might not be possible (or coherent) to establish by agreement that accidental compliance satisfies the duty of loyalty. We leave the exploration of this topic for future work.

74. See Restatement (Second) of Contracts §205; U.C.C. §1–304.

75. The contractarian might try to redescribe the obligation of loyalty in terms of a promise to act loyally. However, this move would involve assigning intentional requirements as part of the content of a promise and thus would concede that there are structural differences between promissory obligations and the duty of loyalty.

76. See Burton, Steven J., Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv. L. Rev. 369 (1980).

77. E.g., Summers, Robert S., The General Duty of Good Faith: Its Recognition and Conceptualization in the New Restatement of Contracts, 67 Cornell L. Rev. 810 (1982); Summers, Robert S., Good Faith in General Contract Law and the Sales Provisions of the Uniform Commercial Code, 54 Va. L. Rev. 195 (1968). Summers essentially defines bad faith as that which is not in good faith. However, even here, accidental compliance is not necessarily bad-faith compliance. The Lucky Payer case does not involve abuse of power, interference with a promisee, failure to cooperate with a promisee, or the intentional rendering of imperfect performance. Maybe Lucky Payer involves an evasion of “the spirit of bargain,” but this contention would beg the question as to whether loyalty can be the subject matter of a bargain in the first place (which the shaping account denies).

78. See generally Strine et al., supra note 53.

79. See Conaglen, supra note 2; Jensen, supra note 2; Birks, Peter, The Content of Fiduciary Obligation, 34 Isr. L. Rev. 3 (2000); Ribstein, supra note 67, at 908. The contractarian position need not overlap with the proscriptivist position—but it sometimes does, especially if contractarian invokes an institutional notion of fiduciary obligation rather than a colloquial or conceptual notion.

80. See Johnson, Lyman, After Enron: Remembering Loyalty Discourse in Corporate Law, 28 Del. J. Corp. L. 27, 37 (2003) (citing Fletcher, supra note 42, at 9).

81. See Conaglen, supra note 2.

82. Id. at 459–460.

83. Some judges appreciate this fact, see Strine et al., supra note 53, which perhaps explains (in part) why moral rhetoric is so common in fiduciary law. Easterbrook and Fischel dismiss the rhetoric rather than engage the more abstract question of how accurately legal rules should attempt to capture the normative landscape. Easterbrook & Fischel, supra note 1.

84. In response, the proscriptivist or contractarian might simply deny that analyzing loyalty's conceptual structure is relevant to legal debates about fiduciary obligations. On this argument, the legal use of terms like “loyalty” and “promise” would have no essential connection to the nonlegal use of these terms. Rather, it could be argued that fiduciary loyalty is an isomorphism of loyalty in general, and an imperfect reproduction at that. The contractarian or proscriptivist would still owe an argument for why it is a good idea for the legal version of a concept like “promise” or “loyalty” to diverge significantly from the noninstitutional version of that concept. Moreover, this isolation itself seems descriptively inaccurate, since courts routinely appeal to the noninstitutional features of promises and loyalty in deciding cases in contract and fiduciary law.

85. See Evan Fox-Decent, Sovereignty's Promise: The State as Fiduciary (2011); Leib, Ethan J., Ponet, David L. & Serota, Michael, Translating Fiduciary Principles into Public Law, 126 Harv. L. Rev. F. 91 (2013); Fox-Decent, Evan & Criddle, Evan J., The Fiduciary Constitution of Human Rights, 15 Legal Theory 301 (2009).

* Thanks to our home institutions for financial support and to, among others, Craig Agule, Russell Christopher, Ken Ehrenberg, Mel Eisenberg, Bob Fischer, Andrew Gold, Sam Halabi, Adam Hill, Simon Keller, Jody Kraus, Arthur Laby, Matt Lamkin, Lionel Smith, Bob Spoo, Rebecca Stone, Steve Thel, R. Jay Wallace, Rob Weber, Gideon Yaffe, and Benjamin Zipursky for useful feedback. Matthew Schwartz provided research support and Larry Abraham provided library support. A conference on the philosophical foundations of fiduciary law in the summer of 2013 at DePaul University provided inspiration and focus; a Fiduciary Law Workshop in 2014 at McGill University provided a fabulous audience to workshop the draft. Thanks, finally, to the journal's reviewers for their comments, which improved the final manuscript.

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Legal Theory
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