Fiduciary Law

In Fiduciary Law , Tamar Frankel examines the structure, principles, themes, and objectives of fiduciary law. Fiduciaries, which include corporate managers, money managers, lawyers, and physicians among others, are entrusted with money or power. Frankel explains how fiduciary law is designed to offer protection from abuse of this method of safekeeping. She deals with fiduciaries in general, and identifies situations in which fiduciary law falls short of offering protection. Frankel analyzes fiduciary debates, and argues that greater preventive measures are required. She offers guidelines for determining the boundaries and substance of fiduciary law, and discusses how failure to enforce fiduciary law can contribute to failing financial and economic systems. Frankel offers ideas and explanations for the courts, regulators, and legislatures, as well as the fiduciaries and entrustors. She argues for strong legal protection against abuse of entrustment as a means of encouraging fiduciary services in society. Fiduciary Law can help lawyers and policy makers designing the future law and the systems that it protects.

Tamar Frankel is a Professor of Law at Boston University. Professor Frankel holds law degrees from the Jerusalem Classes, and LL.M and S.J.D. from Harvard Law School. She is an expert in the areas of fiduciary law, mutual funds, securitization, and corporate governance. She authored The Regulation of Money Managers (2d ed. 2001) (with Ann Taylor Schwing), Fiduciary Law (a teaching book) (2008), Trust and Honesty in the Real World (2007) (with Mark Fagan), Trust and Honesty: America's Business Culture at a Crossroad (2006), Securitization (2d ed. 2006), and about 70 articles on related subjects. She was a visiting scholar at the Securities and Exchange Commission (1995-1997) and at the Brookings Institution (1987). Professor Frankel has taught and lectured in Japan, India, Malaysia, Oxford U.K. and Switzerland. A native of Israel, she served in the Israeli Air Force. She is a member of the Massachusetts Bar, a life member of the American Law Institute, and a member of the board of editors of Regulation and Governance.

Acknowledgments	p. xi
Introduction	p. xiii
The Nature of Fiduciary Relationships	p. 1
Introduction	p. 1
The Recurrent Elements of Fiduciary Relationships	p. 4
A Proposed Definition of Fiduciary Relationships	p. 6
Examples of Fiduciary Relationships and Their Boundaries	p. 42
How Do the Courts Recognize Fiduciary Relationships?	p. 62
The Dark Side of Fiduciary Relationships	p. 73
The Debate	p. 77
Where Does, Fiduciary Law Come From?	p. 79
Introduction	p. 79
The Laws of Hammurabi and Eshnunna	p. 80
The New Testament	p. 83
The Sharia Islamic Law	p. 84
Jewish Law	p. 86
Influence of Moral Themes and Religion	p. 88
Roman Law	p. 90
High Middle Ages	p. 92
Recent U.S. History	p. 96
The Debate	p. 97
The Duties of Fiduciaries	p. 101
Introduction	p. 101
Fundamentals	p. 103
The Main Duties of Fiduciaries	p. 106
The Duty of Loyalty	p. 107
Duties Implementing the Duty of Loyalty	p. 121
The Fiduciaries' Service-Contracts and Compensation	p. 131
The Debates	p. 146
When Should Fiduciaries Consider Public Interest?	p. 156
The Duty of Care	p. 169
Serving Entrustors Whose Interests Conflict	p. 177
Fiduciaries' Rights and Protections from the Entrustors' Claims	p. 182
Fiduciary Duties in Legislation	p. 183
Default Rules in Fiduciary Law	p. 195
Introduction	p. 195
The Process of Releasing Fiduciaries from Their Duties under Fiduciary Rules	p. 200
The Nature of Consent and Surrogate Consenters	p. 207
Default Rules and Contracts	p. 212
The Debate	p. 215
Why View Fiduciary Law as a Separate Category?	p. 217
Introduction	p. 217
Categories Matter	p. 217
Should Fiduciary Law be Viewed as a Category?	p. 223
The Debate	p. 229
The Courts' Regulation of Fiduciaries, Remedies, and Procedures	p. 243
Introduction	p. 243
Courts' Use of Judicial Discretion	p. 243
Remedies Providing Relief on Violations of Fiduciary Duties	p. 248
Equitable Remedies	p. 256
Punitive Damages	p. 258
Dissolution of a Corporation	p. 260
Criminal Sanctions	p. 260
Standing to Sue and Procedural Issues; Common Law and Equity	p. 262
Liability of the Transferee of Entrusted Property Who Knew of the Entrustment	p. 267
Resulting Trusts	p. 267
Conclusion	p. 269
The Role of Fiduciary Law in Facilitating Entrustment and Trust	p. 271
The Nature and Role of Trust	p. 271
The Barriers to Abuse of Trust and Dishonesty	p. 272
The Debate	p. 276
Epilogue	p. 279
Bibliography	p. 289
Table of Cases	p. 293
Index	p. 305
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