Banking and Finance Law Commons^™

From Tort To Crime: Some Reflections On The Criminalization Of Fiduciary Breaches And The Problematic Line Between Law And Ethics, John C. Coffee Jr.

Faculty Scholarship

Within the context of mail and wire fraud prosecutions, criminal liability for breach of fiduciary duties is being imposed with increasing frequency. Professor Coffee discusses the disturbing failure of the courts to require that the fiduciary's conduct have caused legally cognizable harm to the beneficiary. He concludes that an affirmative defense should be available to fiduciaries to show the lack of proximate cause between a breach and the injury. In addition, federal enforcement should occur only after state and private remedies have proven inadequate.