The practice of official apology has a fairly poor reputation. Dismissed as ‘crocodile tears’ or cheap grace, such apologies are often seen by the public as an easy alternative to more punitive or expensive ways of taking real responsibility. I focus on what I call the role-playing criticism: the argument that someone who offers an apology in public cannot be appropriately apologetic precisely because they are only playing a role. I offer a qualified defence of official apologies against this objection, (...) considering them through the lens of fiduciary duties. This focus draws our attention to formal or impersonal relationships that are nevertheless normatively rich, capable of sustaining trust, concern, and care. At the same time, I highlight several pitfalls for fiduciary apologisers, including the tension between apology as a mode of truth telling and the duty of confidentiality. I consider whether the fiduciary apologiser, in reflecting on her fiduciary obligations, has ‘one thought too many’ for genuine apology, and argue that the issue of mixed motives is not limited to fiduciary contexts, cautioning against excessive idealism in our conception of apology. I conclude with some reflections on possible conflicts between fiduciary obligations and the conscientious desire to apologise. (shrink)

The 'business judgement rule ' requires corporate directors only to act with honesty and reasonable care in the interest of shareholders. A stronger ' fiduciary ' duty is required where one party requires protection from another. This paper argues that where corporations take risks with the environment, directors are fiduciaries. Stakeholders are in that case the general public, future generations and other species, which have not voluntarily accepted risk and cannot limit liability. Recognition of fiduciary duty in such (...) cases is consistent with recent trends in the law of equity. It would require all economic activities to move from open to closed systems. (shrink)

BackgroundIn this manuscript, we argue that within the context of phase IV, physician-researchers retain their fiduciary obligation to treat the patient-participants.DiscussionWe first clarify why the perspective that research ethics ought to be differentiated from clinical ethics is not applicable in phase IV, and therefore, why therapeutic orientation is most convivial in this phase. Next, assuming that ethics guidelines may be representative of common morality, we show that ethics guidelines see physician-researchers primarily as physicians and only secondarily as researchers. We (...) then elaborate on what a fiduciary obligation is and how some of the obligations are default duties. Lastly, we look at the fiduciary obligation of the physician-researcher in phase IV interventional trials.ConclusionThe fiduciary obligation to treat is not as easily waived as in earlier trials. Assuming the entwinement of research and practice in phase IV, physician-researchers, in collaboration with other researchers, investigators, and research ethics committees, should ensure that in terms of study design, methodology, and research practice, the therapeutic value of the research to the patient-participants is not diminished. (shrink)

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states 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. (shrink)

Some accounts of the fiduciary relationship place trust and autonomy at odds with one another, so that trusting a fiduciary to act on one’s behalf reduces one’s ability to be autonomous. In this chapter, we critique this view of the fiduciary relationship (particularly bilateral instances of this relationship) using contemporary work on autonomy and ‘relational autonomy’. Theories of relational autonomy emphasize the role that interpersonal trust and social relationships play in supporting or hampering one’s ability to act (...) autonomously. We argue that fiduciary relationships, understood through the lens of relational autonomy, can provide a means of enhancing, rather than diminishing, beneficiaries’ autonomy. (shrink)

Heated debate surrounds the question whether the relationship between physician-researcher and patient-subject is governed by a duty of care. Miller and Weijer argue that fiduciary law provides a strong legal foundation for this duty, and for articulating the terms of the relationship between physician-researcher and patient-subject.

Critics attack normative ethical stakeholder theory for failing to recognize the special moral status of shareholders that justifiesthe fiduciary duties owed to them at law by managers. Stakeholder theorists reply that there is nothing morally significant about shareholders that can underwrite those fiduciary duties. I advance an argument that seeks to demonstrate both the special moral status of shareholders in a firm and the concomitant moral inadequacy of stakeholder theory. I argue that (i) if some relations morally requirefiduciary (...) duties, and (ii) the shareholder-manager relation possesses the features that make fiduciary duties morally necessary to thoserelations, then (iii) stakeholder theory is morally lacking. (shrink)

The claim that managers have a fiduciary duty to shareholders to run the corporation in their interests is generally supported by two arguments: that shareholders are owners of a corporation and that they have a contract or agency relation with management. The latter argument is used by Kenneth E. Goodpaster, who rejects a multi-fiduciary, stakeholder approach on the grounds that the shareholder-management relation is “ethically different” because of its fiduciary character. Both of these arguments provide an inadequate (...) basis for the fiduciary duties of officers and directors of corporations. The basis is to be found, rather, in considerations of public policy, a point that was established in the Dodd-Berle exchange of the 1930s. This conclusion also shows the inadequacy of Goodpaster’s solution to the so-called stakeholder paradox, and an alternative solution to the paradox is presented. (shrink)

The claim that managers have a fiduciary duty to shareholders to run the corporation in their interests is generally supported by two arguments: that shareholders are owners of a corporation and that they have a contract or agency relation with management. The latter argument is used by Kenneth E. Goodpaster, who rejects a multi-fiduciary, stakeholder approach on the grounds that the shareholder-management relation is “ethically different” because of its fiduciary character. Both of these arguments provide an inadequate (...) basis for the fiduciary duties of officers and directors of corporations. The basis is to be found, rather, in considerations of public policy, a point that was established in the Dodd-Berle exchange of the 1930s. This conclusion also shows the inadequacy of Goodpaster’s solution to the so-called stakeholder paradox, and an alternative solution to the paradox is presented. (shrink)

In trust relationships, one person has a ‘beneficial interest’ in another’s performance. The former not only would but should benefit from the latter’s action, and the latter has a ‘fiduciary duty’ toward the former to so act. But where that act would otherwise be wrong, the first person’s beneficial interest would be providing a pro tanto reason for the second person to do something that is pro tanto wrong. That reason can – and should – be removed by the (...) former renouncing their beneficial interest in the latter’s pro tanto wrongful action. Doing so would cancel the fiduciary’s excuse for wrongdoing on the beneficiary’s behalf. (shrink)

This paper argues that since the last decades of the twentieth century the discipline of modern finance has directed fiduciaries to act "rationally"—that is, in the sole financial interest of their funds--downplaying the effects of their investments on others. This approach has deemphasized a previous, more "reasonable" interpretation of fiduciary duty that drew on a conception of prudence characterized by wisdom, discretion and intelligence—one that accounts to a greater degree for the relationship between one's investments and their effects on (...) others in the world. The reasonable approach allows fiduciaries to a greater degree to assess the objective well-being of beneficiaries, to recognize fundamental sources of investment reward in the economy, and to fulfill their obligations to allocate benefits impartially between current and future generations. Reason and rationality can work in a complementary fashion to make investment long-term in its perspective and beneficial to society and the economy as well as to specific funds or portfolios. Determining how to accomplish this challenging task is part of the obligation of fiduciaries as they seek to realize the full potential of the investment assets entrusted to their care. (shrink)

Investors with standard monetary preferences will give a fund manager incentives to increase firm profits, which can be achieved through a share in profits via carried interest. When investors have social preferences, it is not clear which incentives the manager should receive. We explore this puzzle by applying an agency theory perspective to impact investing, a practice where investors seek both financial returns and a measurable social or environmental impact. Using an inductive, qualitative approach, we identify and describe the ethical (...) tensions and challenges faced by fund managers to structure and implement impact-based variable compensation schemes. Our results indicate that economic incentives tied to non-financial objectives are useful to alleviate goal incongruity between principals and agents during fund creation but have the potential to lead to perverse effects during the fund lifecycle, where managers may exploit subjective non-financial metrics to maximize personal wealth. We introduce the concept of impact fidelity, a conceptual equivalent of fiduciary duty, to ensure that investment decisions reflect the asset owner’s impact preferences. (shrink)

The United States Constitution is, in form and fact, a kind of fiduciary instrument, and government officials acting pursuant to that document are subject to the background rules of fiduciary obligation that underlie all such documents. One of the most basic eighteenth-century fiduciary rules was the presumptive rule against subdelegation of discretionary authority. The rule was presumptive only; there were recognized exceptions that permitted subdelegation when it was specifically authorized by the instrument of agency, when it was (...) validated by custom or tradition, and when it was necessary for accomplishment of the agent’s authorized purposes. To what extent might that third exception justify broad subdelegation of legislative authority by Congress to administrative agencies? Part of the answer, which is beyond the aims of this essay, depends on ascertaining the nature of the job entrusted to Congress under the Constitution, which means ascertaining the scope of Congress’s delegated powers. Another part of the answer depends on the extent to which expertise can and may serve as justification for entrusting others with tasks with which one has previously been entrusted. What would a responsible fiduciary approach to expertise—whether for purposes of advice or subdelegation—look like in the modern administrative state? The answer requires a careful examination of the idea of expertise and how it can be applied, and misapplied, in modern governance. This essay offers only the briefest introduction to that problem by trying to frame the questions that responsible fiduciaries need to ask before subdelegating authority. Such questions include: (1) What are the limits of the principal’s own knowledge? (2) What reason is there to think that gaps in that knowledge can, even in principle, be filled by experts? (3) Will application of expert knowledge lead in any particular instance lead to better decisions, given the ubiquitous problem of second-best? and (4) Have you picked the right experts, and will they actually apply expertise rather than using their claim to expertise as a cover for pursuing other goals? These questions in the context of the modern administrative state are just one aspect of a broader problem of nonexperts trying to evaluate—both before and after the fact—the work product of experts. (shrink)

While corporate fiduciary duties in many jurisdictions are generally understood to be owed to shareholders, recent Canadian Supreme Court cases have held that directors owe their duties to the corporation, period, not to shareholders or any other stakeholders. This development has introduced significant indeterminacy to the law since it is not clear what such a conception of the duty requires. The Supreme Court did, however, make one clear statement: it held that directors owe a fiduciary duty to ensure (...) that their corporations obey statutory law. Such a duty encourages compliance with law, but may over-encourage compliance: individual directors do not necessarily gain personally from legal breaches, but may lose personally from them because of fiduciary liability, so they will have excessively strong incentives to avoid such breaches. The Article connects the fiduciary duty to obey law with recent developments in financial regulation that have increased the obligations on directors of financial institutions to oversee risk. By requiring directors to be engaged with risk at a governance level, regulators have enhanced the probability that directors will face liability under their fiduciary duties if their institutions do not comply with financial regulations. As the Article explains, the policy tradeoff between enhanced compliance benefits and over-compliance costs of fiduciary liability is different in the context of financial regulation from that in other settings. For example, significant corporate penalties, as opposed to penalties borne by individual directors, may be inconsistent with the prudential goals of regulation, perhaps because of toobig- to-fail concerns. The fiduciary duty to cause the corporation to obey financial regulation, and a stricter application of this duty than the highly deferential standard that exists in Delaware law, has advantages that do not exist in other legal and regulatory contexts. (shrink)

Bioethics is currently witnessing unprecedented debate over the moral and legal norms governing the conduct of clinical research. At the center of this debate is the duty of care in clinical research, and its most widely accepted specification, clinical equipoise. In recent work, we have argued that equipoise and cognate concepts central to the ethics of clinical research have been left unnecessarily vulnerable to criticism. We have suggested that the vulnerability lies in the conspicuous absence of an articulated foundation in (...) moral and legal theory of the physician-researcher's duty of care to the patient-subject. We have repeatedly suggested that the requisite foundation is in the ethics of trust and the law of fiduciaries.Curiously, despite the absence of a published thorough exposition of our position, some have preemptively criticized our suggestion that the relationship between physician-researcher and patient-subject is fiduciary. Others have offered their own accounts of the implications of fiduciary law for the relationship. (shrink)

This paper evaluates Tu Wei-ming's proposal that the Confucian ideal model of human society should be viewed as a fiduciary community. To do the evaluation, I provide a systematic elaboration of Tu's proposal, which is essentially absent in Tu's writings, and a systematic explication of the Confucian theory of fiduciarity, which is supposed to be the theoretical foundation of Tu's proposal but is completely absent in the studies of Confucianism, including Tu's own. On the basis of these studies, I (...) conclude that the notion of fiduciary community is entailed by the Confucian tradition; tapping the resource of the Confucian tradition for appreciating, supporting and justifying a properly defined model of fiduciary society is practically relevant and important to the modern world; however, given Tu's own definition, the model of fiduciary community does not sufficiently characterise the Confucian ideal society. In the end, I suggest a new way to study Confucian social ideals. (shrink)

The fundamental interaction that triggers a fiduciary obligation is the exercise by one party of discretionary power of an administrative nature over another party's interests, where the latter party is unable, as a matter of fact or law, to exercise the fiduciary's power. The goal of this paper is to demonstrate that there is something "deeply fiduciary" about the interaction between a state and its subjects. The fiduciary nature of this relationship provides the justification for the (...) state's legal authority and its obligation to act in the interests of its subjects. The practical manifestation of the state's overarching fiduciary obligation to its subjects is the rule of law. (shrink)

In meeting legal or professional fiduciary obligations, a fiduciary can sometimes come to share a special moral relationship with her beneficiary. Special moral relationships produce special moral obligations. Sometimes the obligations faced by a fiduciary as a result of her moral relationship with her beneficiary go beyond the obligations involved in the initial fiduciary relationship. How such moral obligations develop is sometimes under the control of the beneficiary, or of an outside party. As a result, the (...) fiduciary can be the target of a distinctive kind of moral manipulation; it is sometimes possible to force a fiduciary to perform a particular act by placing her into circumstances under which she is morally obliged to perform it, because all her other options are morally unacceptable. This is moral blackmail. Moral blackmail is a powerful force within many sorts of human interactions. By understanding the ways in which fiduciaries become vulnerable to moral blackmail, we can better understand the pressures faced by fiduciaries in keeping their personal and professional lives separate, the dynamics of certain kinds of employment negotiations, and the injustice that results when women take on the bulk of the work within caring professions. (shrink)

This paper examines how the application of legal fiduciary principles , can serve as a framework to promote management of clinical genomic “incidental” or secondary target findings that is patient-centered and consistent with recognized patient autonomy rights. The application of fiduciary principles to the clinical genomic testing context gives rise to at least four physician fiduciary duties in conflict with recent recommendations by the American College of Medical Genetics and Genomics . These recommendations have generated much debate (...) among lawyers, clinicians, and bioethicists hence I believe this publication will be of value and interest to your readership. (shrink)

For several decades, international law has recognized certain norms such as the prohibitions against genocide, slavery, and military aggression as "jus cogens"- peremptory law which supersedes conflicting international treaties and customs. Despite widespread acceptance of the jus cogens concept, legal theorists continue to debate whether peremptory norms derive their legal authority from state consent, natural law, or the demands of international public order. Anxiety over peremptory norms' legal basis has frustrated efforts to clarify the scope and content of jus cogens, (...) as well as placing peremptory norms on a collision course with inherited notions of state sovereignty. Drawing on Immanuel Kant 's conception of fiduciary relations, this Article develops a new theory of jus cogens based on the idea that states are fiduciaries of their people. According to the fiduciary theory, peremptory norms do not stand in opposition to state sovereignty; rather, they are constitutive of state sovereign authority because all states owe their subjects a fiduciary obligation to comply with such norms. The fiduciary model of the state resolves the longstanding tension in international legal theory between peremptory norms and state sovereignty and points to discrete formal and substantive criteria for identifying peremptory norms. (shrink)

A critical issue for the future growth and impact of socially responsible investment (SRI) is whether institutional investors are legally permitted to engage in it – in particular whether it is compatible with the fiduciary duties of trustees. An ambitious report from the United Nations Environment Programme’s Finance Initiative (UNEP FI), commonly referred to as the ‘Freshfields report’, has recently given rise to considerable optimism on this issue among proponents of SRI. The present article puts the arguments of the (...) Freshfields report into some further both empirical and critical perspective, however, and suggests that its findings do not call for very much optimism. The general argument is that while the understanding of fiduciary duty outlined by the Freshfields report seems to allow institutional investors to at least sometimes take some social or environmental considerations into account, the support it gives for SRI is notably contingent and, furthermore, it rules out exactly the kind of SRI which proponents of social responsibility and environmental sustainability should hold in highest regard – proactive cases and socially effective investment strategies. If SRI is to become an important force for corporate social responsibility through its adoption by institutional investors, then, it is suggested that legal reform is needed. (shrink)

In the psychotherapist-patient relationship, the therapist-fiduciary must deal with ambiguity, assume risks, and make decisions without final appeal to psychiatric theory. Ambiguity regarding patient autonomy poses treatment paradoxes. Caregiving that aims at autonomy can end up undermining it. Additionally, pursuit of autonomy can put the patient’s well-being at risk.

Virtual assistants (VAs), like Amazon’s Alexa, Google’s Assistant, and Apple’s Siri, are on the rise. However, despite allegedly being ‘assistants’ to users, they ultimately help firms to maximise profits. With more and more tasks and leeway bestowed upon VAs, the severity as well as the extent of conflicts of interest between firms and users increase. This article builds on the common law field of fiduciary law to argue why and how regulators should address this phenomenon. First, the functions of (...) VAs resemble established fiduciaries, namely mandataries when they perform tasks on behalf of users, and increasingly advisors whenever they provide recommendations or suggestions. Second, users grant firms deploying VAs ever more discretion over their economic, and more and more significant non-economic interests, such as their health or finances. This delegation of power renders users vulnerable to abuse of power and inadequate performance by firms deploying VAs. Moreover, neither specification or monitoring nor market forces are alternatives that can sufficiently protect users. Thus, regulation is needed, departing from the recognition of the relationship between firms deploying VAs and users as a fiduciary relationship. In the EU, this could be realised through fiduciary requirements for VAs. First and foremost, to adequately protect users from abuse of power by firms deploying VAs, the core fiduciary duty of loyalty should be converted into corresponding fiduciary requirements for VAs, obliging firms to align VAs with their users. (shrink)

Ethical fiduciaries in health care lack sufficient criteria for making ethical decisions. The authors introduce criteria from The Theory of Comfort as developed in the nursing literature. According to the theory, comfort is based in observation, measurable, and represents a nearly universal human need and interest. Use of the theory is illustrated through three case studies.

This paper serves two purposes: first, the proposition of an ethical fiduciary theory that substantiates the often-cited assertion that the patient–physician relationship is fiduciary in nature; and second, the application of this theory to the case of informed consent. Patients’ decision-making preferences vary significantly. While some seek fully autonomous decision-making, others prefer to delegate parts of their decision. Therefore, we propose an ethical fiduciary theory that allows physician and patient to jointly determine the physician’s role on a (...) spectrum from fiduciary as advisor to fiduciary as agent. Drawing on legal concepts of the fiduciary relationship and on phenomenological accounts of obligation by Lévinas and Løgstrup, our theory relies on the key attributes of trust, vulnerability and otherness. Finally, practical implications of this theory for the informed consent process are developed: we propose a preassessment of patients’ risk and value profiles as well as a restructuring of the oral consent interview and the written consent materials. (shrink)

One of the most important questions in the ethics of human clinical research asks what obligations investigators owe the people who enroll in their studies. Research differs in many ways from standard care - the added uncertainties, for instance, and the nontherapeutic interventions such as diagnostic tests whose only purpose is to measure the effects of the research intervention. Hence arises the question whether a physician engaged in clinical research has the same obligations toward research subjects that he owes his (...) medical patients, or whether they differ in any fundamental way.Perhaps the most common answer is that the relationship is the same. Investigators, like physicians, are said to be fiduciaries of the volunteers who enroll in research trials. Each owes the best available medical care, which means that a physician can only justify enrolling his patient in research if the study meets the requirements of clinical equipoise, namely, that there is legitimate disagreement within the medical community as to whether the standard treatment or the investigational intervention is superior. (shrink)

Explores the interactions of fiduciary law and personal and political trust in private, public and international law.

Most discussions of fiduciary duty focus on medical decision-making, but that is not the only context in which the concept is important. Investment advisers have fiduciary duties to their clients: in this essay, we address those duties. Many advisers refuse to help their clients with ‘socially responsible’ investment plans, for a variety of reasons, among which are fiduciary concerns. We argue that the reasons generally given not to pursue a religious, environmental, or social investment strategy are mistaken, (...) and, most importantly, that an investment adviser’s fiduciary duties may be met while providing such alternatives to clients. (shrink)

Within bioethics, two prevailing approaches structure how we think about the role of medical surrogates and the decisions that they must make on behalf of incompetent patients. One approach views the surrogate primarily as the patient's agent, obediently enacting the patient's predetermined will. The second approach views the surrogate as the patient's custodian, judging for herself how to best safeguard the patient's interests. This paper argues that both of these approaches idealize away some of the ethically relevant features of advance (...) care planning that make patient preferences so inscrutable and surrogate decision-making so burdensome. It proposes a new approach to surrogate decision-making, the Fiduciary Agency Approach. On this novel approach, the surrogate has authority to not only act on the patient's behalf as the patient's agent but also to decide on the patient's behalf as the patient's fiduciary. One upshot of this new approach is that surrogates must sometimes go against the expressed dictates of the patients' advance directives not necessarily because doing so would be in the patient's best interest but rather because doing so would best represent the patients' will. (shrink)

In the psychotherapist-patient relationship, the therapist-fiduciary must deal with ambiguity, assume risks, and make decisions without final appeal to psychiatric theory. Ambiguity regarding patient autonomy poses treatment paradoxes. Caregiving that aims at autonomy can end up undermining it. Additionally, pursuit of autonomy can put the patient’s well-being at risk.

The well-being of generations yet to come must necessarily be an important concern for the present. As an extension of Rawls’ ‘just savings’ principle, one of the arguments for sustainable development is that of intergenerational equity—the idea that future generations must have the same access to natural resources as the present generation. In this article, I attempt to reconcile the divergent positions of the shareholder and stakeholder primacy debate by proposing that directors—acting for the corporation—should preserve intergenerational equity. Three arguments (...) are presented in course of this proposition. Firstly, corporations are perpetual in nature and their continuing existence is predicated upon the ability of individual owners to transfer their ownership. Second, directors have a higher fiduciary duty to the corporation and future shareholders, over that of present shareholders. Finally, in order to safeguard the interests of future shareholders, corporations must necessarily strive to preserve the natural and social environments upon which the future of the corporation and the wealth of future shareholders depend. (shrink)

The well-being of generations yet to come must necessarily be an important concern for the present. As an extension of Rawls’ ‘just savings’ principle, one of the arguments for sustainable development is that of intergenerational equity—the idea that future generations must have the same access to natural resources as the present generation. In this article, I attempt to reconcile the divergent positions of the shareholder and stakeholder primacy debate by proposing that directors—acting for the corporation—should preserve intergenerational equity. Three arguments (...) are presented in course of this proposition. Firstly, corporations are perpetual in nature and their continuing existence is predicated upon the ability of individual owners to transfer their ownership. Second, directors have a higher fiduciary duty to the corporation and future shareholders, over that of present shareholders. Finally, in order to safeguard the interests of future shareholders, corporations must necessarily strive to preserve the natural and social environments upon which the future of the corporation and the wealth of future shareholders depend. (shrink)

One of the most important questions in the ethics of human clinical research asks what obligations investigators owe the people who enroll in their studies. Research differs in many ways from standard care - the added uncertainties, for instance, and the nontherapeutic interventions such as diagnostic tests whose only purpose is to measure the effects of the research intervention. Hence arises the question whether a physician engaged in clinical research has the same obligations toward research subjects that he owes his (...) medical patients, or whether they differ in any fundamental way.Perhaps the most common answer is that the relationship is the same. Investigators, like physicians, are said to be fiduciaries of the volunteers who enroll in research trials. Each owes the best available medical care, which means that a physician can only justify enrolling his patient in research if the study meets the requirements of clinical equipoise, namely, that there is legitimate disagreement within the medical community as to whether the standard treatment or the investigational intervention is superior. (shrink)

Wearable self-tracking devices capture multidimensional health data and offer several advantages including new ways of facilitating research. However, they also create a conflict between individual interests of avoiding privacy harms, and collective interests of assembling and using large health data sets for public benefits. While some scholars argue for transparency and accountability mechanisms to resolve this conflict, an average user is not adequately equipped to access and process information relating to the consequences of consenting to further uses of her data. (...) As an alternative, this paper argues for fiduciary relationships, which put deliberative demands on digital health data controllers to keep the interests of their data subjects at the forefront as well as cater to the contextual nature of privacy. These deliberative requirements ensure that users can engage in collective participation and share their health data at a lower risk of privacy harms. This paper also proposes a way to balance the flexible and open-ended nature of fiduciary law with the specific nature and scope of fiduciary duties that digital health data controllers should owe to their data subjects. (shrink)

In meeting legal or professional fiduciary obligations, a fiduciary can sometimes come to share a special moral relationship with her beneficiary. Special moral relationships produce special moral obligations. Sometimes the obligations faced by a fiduciary as a result of her moral relationship with her beneficiary go beyond the obligations involved in the initial fiduciary relationship. How such moral obligations develop is sometimes under the control of the beneficiary, or of an outside party. As a result, the (...) fiduciary can be the target of a distinctive kind of moral manipulation; it is sometimes possible to force a fiduciary to perform a particular act by placing her into circumstances under which she is morally obliged to perform it, because all her other options are morally unacceptable. This is moral blackmail. Moral blackmail is a powerful force within many sorts of human interactions. By understanding the ways in which fiduciaries become vulnerable to moral blackmail, we can better understand the pressures faced by fiduciaries in keeping their personal and professional lives separate, the dynamics of certain kinds of employment negotiations, and the injustice that results when women take on the bulk of the work within caring professions. (shrink)

This paper focuses on the issue of justice as a challenge facing business and society. I advance a simple deductive argument based on two premises. The first emerges out of theories of justice and holds that fairness, as a foundational basis for justice, demands impartiality or the avoidance of bias. The second emerges out of fiduciary law and holds that the duty of loyalty owed by managers to serve the interests of investors is fundamentally partial or biased. The conclusion (...) is the troubling fact that the fiduciary duty of loyalty owed by managers to serve the interests of investors appears to be incompatible with the demands of justice. Having presented this, I describe the impartiality tools of Rawls’ veil of ignorance and Adam Smith’s impartial spectator and discuss how these might be applied in this context. I speculate that while Smith’s impartial spectator is absolutely incommensurable with managers’ fiduciary duty of loyalty, Rawls’ veil of ignorance might be used to imagine a synthesis between this duty of loyalty and the impartiality demands of justice – in theory at least. And finally, as a parting shot, I wonder whether the real “Leadership Challenge that Matters” isn’t the gap between theory and reality. (shrink)

A critical issue for the future growth of socially responsible investment (SRI) is to what extent institutional investors such as pension funds can be persuaded to engage in it. This paper considers attempts at justifying such engagement stemming from a range of (re-)interpretations of the fiduciary duties owed by pension funds to their beneficiaries, and thereby develops a hypothesis concerning the most effective political or legal remedy. Previous commentary suggests that fiduciary duty either already mandates SRI for pension (...) funds, or at least can be made to do so rather easily. In contrast with this, however, this paper finds that none of the considered interpretations is able to justify engagement on social and environmental issues across the board. Indeed, the problem to some extent seems rooted in the very concept of fiduciary duty. The paper is relevant to current attempts at justifying SRI through reinterpretations of fiduciary duty, provided mainly by legal scholars and practitioners. By addressing the more philosophical issue of how far the concept of fiduciary duty can be “stretched” to accommodate SRI (a project of conceptual rather than legal clarification), it provides an evaluation of the contemporary debate which is independent of squabbles about existing law. The paper shows that there are conceptual limits to attempts at redefining fiduciary duty. But this does not mean that pension funds' engagement in SRI is unjustified or unjustifiable more generally. A more promising way to legally mandate SRI may be through what is dubbed independent social and environmental obligations. (shrink)

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 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 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. configures fiduciary obligations as a species of contractual duties. The view that we call 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. (shrink)

Parents resemble trustees, conservators, and other fiduciaries; they exercise broad discretion while making choices for vulnerable people. Like other fiduciaries, parents can be tempted to neglect their duties or pursue self-interest at the expense of those they should protect. This article argues against treating parents as fiduciaries for three reasons. First, the scope of parental fiduciary duties cannot be narrowed enough to make them tolerable. Arguments limiting fiduciary duties to cases where parents exercise delegated powers or act within (...) parenting roles fail. Most parental decisions involve dual powers or roles. Efforts to address these dual-role cases produce principles that are unduly demanding, complex, arbitrary, and morally unappealing. Second, we could limit parental fiduciary duties by designing parental roles to benefit children. Since children need devoted, happy, well-rounded parents, the principle of designing parental roles to benefit children would produce rules that leave room for parents to flourish. However, this principle does not justify specific legal or moral fiduciary norms. Third, we could redefine fiduciary duties so parents can balance their interests against children’s interests, making fiduciary duties less burdensome. However, expanding the definition of fiduciary threatens to encompass many duties within the fiduciary category, rendering the description almost meaningless. (shrink)

How should we respond to patients who do not wish to take on the responsibility and burdens of making decisions about their own care? In this paper, we argue that existing models of decision-making in modern healthcare are ill-equipped to cope with such patients and should be supplemented by an “appointed fiduciary” model where decision-making authority is formally transferred to a medical professional. Healthcare decisions are often complex and for patients can come at time of vulnerability. While this does (...) not undermine their capacity, it can be excessively burdensome. Most existing models of decision-making mandate that patients with capacity must retain ultimate responsibility for decisions. An appointed fiduciary model provides a formalized mechanism through which those few patients who wish to defer responsibility can hand over decision-making authority. By providing a formal structure for deferring to an appointed fiduciary, the confusions and risks of the informal transfers that can occur in practice are avoided. Finally, we note how appropriate governance and law can provide safeguards against risks to the welfare of patients and medical professionals. -/- . (shrink)

Corporations wield power in today’s economies, and political theories of the corporation argue about the legitimacy conditions of corporate power. This paper argues in favour of a double-fiduciary theory for corporations. Based on a concession theory of markets, it sees all markets as authorized by states (in the name of society), for the purpose of creating economic value, or wealth. Hence corporations, as much as non-incorporated firms, have a fiduciary duty to the state/society to create wealth, in the (...) competitive structure of the market. However, their pursuit of wealth often creates unbalanced relations of power between corporations and their stakeholders, which can at some point be classified as instances of domination. Therefore, corporations need to be subjected to a second fiduciary duty, i.e. not to dominate others in the economy. This duty is also, in the final instance, owed to the state/society. In an era when everyone can incorporate their business, states/societies can be interpreted as having, through corporate law, mandated shareholders as ‘proximate beneficiaries’, to incentivize corporations to create wealth. Now states/societies need to think about how to prevent corporations from dominating others. New mechanisms of accountability towards stakeholders and/or citizens as proximate beneficiaries are needed. Only in this way can corporations be effectively held to account for both of the fiduciary duties which characterize their normative status. (shrink)

In their target article, Doernberg and Truog (2023) correctly recognize that the doctor-patient relationship is considered a “fiduciary” relationship (i.e., other-regarding rather than self-interes...

This article addresses the fiduciary issues raised by the current practice of plan fiduciaries of not only disclaiming any fiduciary responsibility for brokerage window investments, but also abdicating any role (fiduciary or otherwise) in assessing even the general suitability of those investments for a retirement plan, and concludes that the practice is in plain and notorious violation of what ERISA requires of fiduciaries.