D Gordon Smith and Andrew S Gold (eds), Research Handbook on Fiduciary Law

Document Cited in Related
DOI10.3366/elr.2022.0798
Author
Pages470-472
Date01 September 2022
Published date01 September 2022

It sometimes feels that the state of the art of fiduciary law is that it is in a state. Long years have now passed during which time scholars (less so courts) have tried to formulate a theory or conceptual basis for a coherent or unified law of fiduciaries across the “Common Law world”, broadly defined. Arguably little in the way of consensus has emerged in that time as the concept stubbornly refuses to be conceptually tamed and jurisdictions’ laws diverge or drift. In the absence of a generally accepted or even dominant conceptual basis, the boundaries of fiduciary law, and in particular who or what offices or roles fall within its reach, necessarily remain contested. The contestation plays out across a backdrop of apparently endless practitioner attempts to expand those borders, not least because of the beneficial litigation consequences of demonstrating that your opponent was a fiduciary and therefore subject to more arduous and abstemious duties guaranteed by a suite of tough remedies to enforce them. But those doctrinal rules or default standards developed by reference to what might be called “classic” examples of a fiduciary – such as a trustee, an agent or the representative of a minor – seem settled or at least fairly predictable.

Into this fray enters Smith and Gold’s (eds), Research Handbook on Fiduciary Law (hereafter “the Handbook”), which might initially be thought to have a particular context or perspective on these issues as a volume in Elgar’s series of handbooks on corporate law and governance. Yet it would be unfair not to say from the outset that the Handbook is an impressive and wide-ranging treatment of various aspects of fiduciary law that has a great deal to say that is of interest and value to someone looking at the subject without a particular corporate or governance interest. Though someone with such an interest will be well served, particularly in the later sections of the text which do focus more on the corporate fiduciary as enriched by looking to different jurisdictions’ approaches. Most of the contributors are based at institutions in the USA, though there are a handful of contributions from others based in Australia, Canada, Israel and England. In that sense the text is probably best seen in the first instance as a text with most focus on the situation in the USA, though there is significant coverage of English authority and elements of UK company law. For the Scots lawyer in particular (by my count there are three Scottish...

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