9780195391565

Fiduciary Law

by
  • ISBN13:

    9780195391565

  • ISBN10:

    019539156X

  • Format: Hardcover
  • Copyright: 2010-12-17
  • Publisher: Oxford University Press

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Summary

In Fiduciary Law , Tamar Frankel examines the structure, principles, themes, and objectives of fiduciary law. Fiduciaries, which include corporate managers, money managers, lawyers, and physicians among others, are entrusted with money or power. Frankel explains how fiduciary law is designed to offer protection from abuse of this method of safekeeping. She deals with fiduciaries in general, and identifies situations in which fiduciary law falls short of offering protection. Frankel analyzes fiduciary debates, and argues that greater preventive measures are required. She offers guidelines for determining the boundaries and substance of fiduciary law, and discusses how failure to enforce fiduciary law can contribute to failing financial and economic systems. Frankel offers ideas and explanations for the courts, regulators, and legislatures, as well as the fiduciaries and entrustors. She argues for strong legal protection against abuse of entrustment as a means of encouraging fiduciary services in society. Fiduciary Law can help lawyers and policy makers designing the future law and the systems that it protects.

Author Biography


Tamar Frankel is a Professor of Law at Boston University. Professor Frankel holds law degrees from the Jerusalem Classes, and LL.M and S.J.D. from Harvard Law School. She is an expert in the areas of fiduciary law, mutual funds, securitization, and corporate governance. She authored The Regulation of Money Managers (2d ed. 2001) (with Ann Taylor Schwing), Fiduciary Law (a teaching book) (2008), Trust and Honesty in the Real World (2007) (with Mark Fagan), Trust and Honesty: America's Business Culture at a Crossroad (2006), Securitization (2d ed. 2006), and about 70 articles on related subjects. She was a visiting scholar at the Securities and Exchange Commission (1995-1997) and at the Brookings Institution (1987). Professor Frankel has taught and lectured in Japan, India, Malaysia, Oxford U.K. and Switzerland. A native of Israel, she served in the Israeli Air Force. She is a member of the Massachusetts Bar, a life member of the American Law Institute, and a member of the board of editors of Regulation and Governance.

Table of Contents

Acknowledgmentsp. xi
Introductionp. xiii
The Nature of Fiduciary Relationshipsp. 1
Introductionp. 1
The Recurrent Elements of Fiduciary Relationshipsp. 4
A Proposed Definition of Fiduciary Relationshipsp. 6
Examples of Fiduciary Relationships and Their Boundariesp. 42
How Do the Courts Recognize Fiduciary Relationships?p. 62
The Dark Side of Fiduciary Relationshipsp. 73
The Debatep. 77
Where Does, Fiduciary Law Come From?p. 79
Introductionp. 79
The Laws of Hammurabi and Eshnunnap. 80
The New Testamentp. 83
The Sharia Islamic Lawp. 84
Jewish Lawp. 86
Influence of Moral Themes and Religionp. 88
Roman Lawp. 90
High Middle Agesp. 92
Recent U.S. Historyp. 96
The Debatep. 97
The Duties of Fiduciariesp. 101
Introductionp. 101
Fundamentalsp. 103
The Main Duties of Fiduciariesp. 106
The Duty of Loyaltyp. 107
Duties Implementing the Duty of Loyaltyp. 121
The Fiduciaries' Service-Contracts and Compensationp. 131
The Debatesp. 146
When Should Fiduciaries Consider Public Interest?p. 156
The Duty of Carep. 169
Serving Entrustors Whose Interests Conflictp. 177
Fiduciaries' Rights and Protections from the Entrustors' Claimsp. 182
Fiduciary Duties in Legislationp. 183
Default Rules in Fiduciary Lawp. 195
Introductionp. 195
The Process of Releasing Fiduciaries from Their Duties under Fiduciary Rulesp. 200
The Nature of Consent and Surrogate Consentersp. 207
Default Rules and Contractsp. 212
The Debatep. 215
Why View Fiduciary Law as a Separate Category?p. 217
Introductionp. 217
Categories Matterp. 217
Should Fiduciary Law be Viewed as a Category?p. 223
The Debatep. 229
The Courts' Regulation of Fiduciaries, Remedies, and Proceduresp. 243
Introductionp. 243
Courts' Use of Judicial Discretionp. 243
Remedies Providing Relief on Violations of Fiduciary Dutiesp. 248
Equitable Remediesp. 256
Punitive Damagesp. 258
Dissolution of a Corporationp. 260
Criminal Sanctionsp. 260
Standing to Sue and Procedural Issues; Common Law and Equityp. 262
Liability of the Transferee of Entrusted Property Who Knew of the Entrustmentp. 267
Resulting Trustsp. 267
Conclusionp. 269
The Role of Fiduciary Law in Facilitating Entrustment and Trustp. 271
The Nature and Role of Trustp. 271
The Barriers to Abuse of Trust and Dishonestyp. 272
The Debatep. 276
Epiloguep. 279
Bibliographyp. 289
Table of Casesp. 293
Indexp. 305
Table of Contents provided by Ingram. All Rights Reserved.

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