Law Commons^™

Liberty In Loyalty: A Republican Theory Of Fiduciary Law, Evan J. Criddle

Faculty Publications

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features.

The normative foundations of fiduciary loyalty come into sharper focus when viewed …

Keeping The Promise Of Public Fiduciary Theory: A Reply To Leib And Galoob, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

No abstract provided.

Human Rights, Emergencies, And The Rule Of Law, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

This article illuminates the normative basis for international law’s regulation of public emergencies by arguing that human rights are best conceived as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.

Fiduciary Administration: Rethinking Popular Representation In Agency Rulemaking, Evan J. Criddle

Faculty Publications

Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for the "will of the people" in the administrative state. According to this view, placing federal rulemaking power firmly within the President's managerial control would advance popular preferences throughout the federal system.

This conventional wisdom is misguided. As political scientists have long recognized, the electorate's relative disengagement …

The Fiduciary Constitution Of Human Rights, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

A Fiduciary Theory Of Jus Cogens, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

No abstract provided.

Individual Or Collective Liability For Corporate Directors?, Darian M. Ibrahim

Faculty Publications

Fiduciary duty is one of the most litigated areas in corporate law and the subject of much academic attention, yet one important question has been ignored: Should fiduciary liability be assessed individually, where directors are examined one-by-one for compliance, or collectively, where the board's compliance as a whole is all that matters? The choice between individual and collective assessment may be the difference between a director's liability and her exoneration, may affect how boards function, and informs the broader fiduciary duty literature in important ways. This Article is the first to explore the individual/collective question and suggest a systematic way …

Fiduciary Foundations Of Administrative Law, Evan J. Criddle

Faculty Publications

An enduring challenge for administrative law is the tension between the ideal of democratic policymaking and the ubiquity of bureaucratic discretion. This Article seeks to reframe the problem of agency discretion by outlining an interpretivist model of administrative law based on the concept of fiduciary obligation in private legal relations such as agency, trust, and corporation. Administrative law, like private fiduciary law, increasingly relies upon a tripartite framework of entrustment, residual control, and fiduciary duty to demarcate a domain of bounded agency discretion. To minimize the risk that agencies will abuse their entrusted discretion through opportunism or carelessness, administrative law …

The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne's Testimony, Neal Devins

Faculty Publications

No abstract provided.

Bank Liability For Fiduciary Fraud, Marion W. Benfield Jr., Peter A. Alces

Faculty Publications

No abstract provided.