Friday, January 4, 2002
10:30 a.m.-12:15 p.m.
Section on Donative Transfers, Fiduciaries and Estate Planning
Is There Anything Special About Fiduciary Relationships?
Gregory S. Alexander, Cornell Law School
Deborah A. DeMott, Duke University
Tamar Frankel, Boston University (view material)
Jonathan R. Macey, Cornell Law School
In recent years, several law-and-economics scholars have argued that there is no categorical difference between fiduciary relationships and other, non-fiduciary long-term contracts. Fiduciary relationships, they have argued, simply are long-term contractual arrangements. The leading article making this argument is by Frank Easterbrook & Daniel Fischel, "Contract and Fiduciary Duty," 36 J.L. & Econ. 425 (1993). More recently, Professor John Langbein has made similar arguments about trusts, arguing that trusts ARE contracts. See John Langbein, "The Contractarian Basis of Law Trusts," 105 Yale L.J. 625 (1995). Other scholars have argued that fiduciary relationships are indeed special and are merely a species of contracts. The purpose of this session is to discuss the question whether there is anything special to fiduciary relationships and their concomitant duties and, if so, what. Since fiduciary relationships are involved in a variety of legal transactions, the discussion will focus on corporate fiduciaries as well as trustees and other property fiduciaries. The aim is to allow scholars who deal with fiduciary law in different contexts to engage with one another.
All of the panelists have written on various aspects of fiduciary law. Professor DeMott is the author of the widely known article, "Beyond Metaphor: An Analysis of Fiduciary Obligation," 1988 Duke L.J. 879. She is also currently the Reporter for the Restatement of the Law of Agency. Professor Frankel is author of another widely-cited article, "Fiduciary Law," 71 Calif. L. Rev. 795 (1983) as well as other distinguished work on fiduciary law. Professor Macey is the well-known author of many articles on corporate law and law-and-economics. Professor Alexander is author of "A Cognitive Theory of Fiduciary Relationships," 85 Cornell L. Rev. 767 (2000).
The audience is encouraged to join the discussion after the panelists briefly express their views on this fascinating topic.
Business Meeting at Program Conclusion