This chapter examines two modalities of equitable intervention in corporate governance in cases of shareholder conflict. The first involves the extension of fiduciary duties to controlling shareholders, and the second judicial review on the grounds of oppression. Both forms of intervention are intended to be responsive to pathologies inherent in majoritarian governance in organizations featuring enfranchised members. Notwithstanding long-settled authority in Delaware and other American states for the proposition that controlling shareholders are fiduciaries of minority shareholders, I argue that fiduciary regulation is an inapt modality of equitable intervention given the nature of the problems generated by majority rule in corporations. By comparison, the oppression remedy—favored in commonwealth jurisdictions—enables more apt and effective tailored responses to these problems. The choice between these modalities of intervention implicates a choice between equity’s supplemental contributions to first-order law and its corrective, second-order intervention in first-order law. The chapter concludes with some general reflections on the place of equity in contemporary law.

We begin with two bibliographical observations. First, scholarly interest in trust is no recent phenomenon, but lately there has been a flowering of academic literature studying numerous dimensions of trust from the standpoints of philosophy, economics, sociology and psychology. The depth and richness of this literature is impressive but hardly surprising, given that trust itself is a notoriously complex, elusive and fact-specific phenomenon. Secondly, scholarly interest in the fiduciary principle that plays such a central role in common law legal systems with a tradition of equity was scarce until the late twentieth century. However, that situation has most definitely changed (for the better), and we now enjoy an abundance of scholarship exploring the fiduciary principle in private law. Moreover, there is a growing body of work exploring ideas of fiduciary government and international law. Scholars are puzzling over fiduciaries and trust as never before.

Political (Dis)Trust and Fiduciary Government analyzes the relationship between two key ideas in modern political thought: political trust and fiduciary government. The chapter begins with fiduciary government. Miller distinguishes ‘thick’ from ‘thin’ variants on the idea of fiduciary government. Thick variants place substantial normative weight on the idea, claiming, for example, that it solves the problem of political authority and provides an independent normative basis for the recognition of specific legal rights. Thin variants make much more modest claims. Miller’s own thin account, deployed here, suggests that fiduciary government articulates conditions under which the conduct of government can be understood as truly representative. By comparison with this thin conception of fiduciary government, an understanding of political trust as a particularized (or focused) and objective (or manifest) form of trust shown (or withheld) by citizens in public officials does distinct work. Briefly: it illuminates understanding of the political conditions and activity on which fiduciary government depends. That said, Miller also notes that ideals of fiduciary government and of political trust, where instantiated, dovetail: demands of fiduciary government enable public officials to prove trustworthy in ways that promote political trust, while also creating space for constructive forms of political distrust.