Fiduciary Obligations: Why and When?

James Edelman, When Do Fiduciary Duties Arise?, 126 Law Q. Rev. 302 (2010), available at SSRN. Tom Gallanis Observers with a transatlantic lens will readily notice that law professors in England take legal doctrine seriously. At the elite law faculties in Cambridge, Oxford, and London, the sophisticated study of doctrine thrives and is highly respected. The contrast with the modern legal academy in the United States is striking. For example, how many U.S. law professors write or teach in the field of restitution? The American Law Institute has just completed a remarkable Restatement (Third) of the Law of Restitution and Unjust Enrichment, yet the subject is largely, though not entirely, absent from our classrooms and student-edited law reviews. And restitution is not the only example. Consider the trenchant observations of Professor John Langbein: Legal doctrinal writing [in the United States has]… declined precipitously. A good way to see what has happened is simply to compare the law reviews for then and now. I recently had occasion to check something in the 1967-1968 Yale Law Journal, where I noticed a three-part article on federal tax liens. I think you'd probably have to establish your own law review today in order to publish a three-part article on tax liens. The current diet in the leading journals is mostly high falutin' constitutional law and theory, gender and racial issues, and law-and-economics. Doctrinal analysis is disfavored, and a good rule of thumb is that the 'better' the journal the less doctrinal scholarship it will publish.1 A fascinating English study of doctrine recently crossed my desk: James Edelman's article on "When Do Fiduciary Duties Arise?" It appeared in the prestigious and peer-edited Law Quarterly Review. The author teaches at Oxford, where he is Professor of the Law of Obligations. (If only donors to U.S. law schools would endow such chairs!) Continue reading "Fiduciary Obligations: Why and When?"

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