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It is rare for something as precise and analytical as Wesley Hohfeld’s system of legal relations to serve as a Rorschach blot. For a century now, legal theorists have seen reflected in it their picture of a flat undifferentiated landscape of law – protean material for refashioning on policy grounds. This was not Hohfeld’s vision and yet it is not wholly untrue to it either. Hohfeld believed, as did many others in his day, that greater clarity about basic legal concepts and clearing away ambiguities would make law transparent to policy and lead inexorably to improvement in the law.1 The first step in clearing away the cobwebs was to ground the law in its micro foundations. This is where the trouble starts.
The business judgment rule can be justified on multiple grounds, ranging from concerns with hindsight bias, to doubts about judicial expertise, to worries about excessive director caution (and this is an incomplete list). We can also understand this rule as a mechanism to facilitate entrepreneurial action. In part, this is a product of the normal operation of the rule, with its high level of judicial deference. It is also a consequence of the rule’s limited exceptions, and the courts’ reluctance in adding new ones. I will focus in particular on the rejection of external benchmarks for measuring the reasonableness of a business judgment.
Trust matters to fiduciary law in a variety of ways. This chapter will focus on the importance of trust in advisory relationships, and it will emphasize two settings: categorical fiduciary relationships and ad hoc fiduciary relationships. In the former setting, I will suggest that these relationships are appropriately treated as fiduciary in part due to the likelihood of a beneficiary’s epistemic dependence on a fiduciary’s judgements. It is not necessary for epistemic dependence to exist in any particular advisory relationship to support this categorical treatment, so long as the likelihood of epistemic dependence is high enough across the category. In turn, the presence of trust supports the likelihood of that epistemic dependence. In the ad hoc fiduciary setting, I will suggest that these relationships are sometimes best seen as a kind of “involvement” (as that concept is developed in David Owens’s work). Involvements are voluntary relationships even though they may have no precise moment when they come into existence. Importantly, the existence of involvements is generally recognizable by the parties involved. Trust is relevant here as an aid in legally identifying such relationships.
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.