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This chapter coins the term “stakeholder fiduciary” to describe fiduciaries who are formal beneficiaries of their own exercise of fiduciary power. The fiduciary duty of loyalty applies differently to stakeholder fiduciaries, requiring not complete self-abnegation, but rather solidarity with other beneficiaries. Accordingly, a stakeholder fiduciary may retain an equitable share of the profits she generates through her position—even when such profits are the product of conflicted transactions or misappropriated opportunities. More striking still, when a stakeholder fiduciary participates in collective governance, she is entitled to vote exclusively in her own interests as long as she does not abuse her voting power to dominate other beneficiaries or undermine the purposes of the fiduciary relationship.
The chapter argues further that American courts give extra deference to the decisions of stakeholder fiduciaries. As long as a stakeholder fiduciary’s interests are plausibly consistent with the interests of other beneficiaries, courts will allow her to decide for herself how much time and energy she should devote to a particular decision. The best explanation for this deferential standard is that courts trust stakeholder fiduciaries to exercise due care without intrusive judicial oversight precisely because these fiduciaries have a direct stake in their own successful performance.
This Article challenges the conventional wisdom that states are always free to choose whether to participate in multilateral regimes. International law often mandates multilateralism to ensure that state laws and practices are compatible with sovereign equality and joint stewardship. The Article maps mandatory multilateralism's domain, defines its requirements, and examines its application to three controversies: the South China Sea dispute, the United States’ withdrawal from the 2015 Paris Agreement, and Bolivia's case against Chile in the International Court of Justice.
The idea that the state is a fiduciary to its citizens has a long pedigree - ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents. Public fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. This book is the first of its kind: a collection of chapters by leading writers on public fiduciary subject areas. The authors develop new accounts of how fiduciary principles apply to representation; to officials and judges; to problems of legitimacy and political obligation; to positive rights; to the state itself; and to the history of ideas. The resulting volume should be of great interest to political theorists and public law scholars, to private fiduciary law scholars, and to students seeking an introduction to this new and increasingly relevant area of study.
Public emergencies such as civil wars, natural disasters, and economic crises test the theoretical and practical commitments of international human rights law. During national crises, international law permits states to suspend many human rights protections in order to safeguard national security. States frequently overstep the limits of this authority, violating even peremptory human rights such as the prohibitions against torture and prolonged arbitrary detention. In this volume, leading scholars from law, philosophy and political science grapple with challenging questions concerning the character, scope, and salience of international human rights, and they explain how the law seeks to protect human rights during emergencies. The contributors also evaluate the law's successes and failures, and offer new proposals for strengthening respect for human rights.