Edited by D. G. Smith and Andrew S. Gold
Chapter 2: Interpreting fiduciary law
Although there are exceptions, fiduciary theory has paid limited attention to interpretive methodology. Yet methodology matters, and the distinctive features of fiduciary law offer insights for interpreting private law more generally. Private law theorists commonly assess interpretive theories against a range of criteria, including: fit; coherence; morality; and transparency. This chapter will suggest that fiduciary law has important implications for two of these criteria in particular: the coherence criterion and the morality criterion. Changes in legal understandings of fiduciary obligations – particularly with the advent of economic analysis of law – suggest that fiduciary law may best be understood as locally coherent rather than globally coherent. In addition, while fiduciary loyalty may be understood in moral terms, there is reason for caution in adopting a morality criterion when interpreting the field.
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