Fiduciary Obligations Research Articles

Should Index Providers Be Regulated as Investment Advisers under the US Investment Advisers Act of 1940

The increasing importance of the index industry to the financial marketplace has drawn the attention of the US Securities and Exchange Commission (SEC). The use of custom, foreign, and narrow-based indexes and self-indexing has generated regulatory concerns, including possibilities of improper index selection procedures, misleading index descriptions, inadequate or misleading custom index disclosures, and self-dealing. Suggested remedies include requiring index providers to register with the SEC as investment advisers under the Investment Advisers Act of 1940 (act). Historically, index providers have relied on an exclusion from registration under the act; this proposal queries their entitlement to rely on the exclusion. If index providers are required to register, it is unlikely that regulation under the act would prove useful. Rather, enhanced disclosure and the application of existing securities laws, including those dealing with disclosure and antifraud concerns, and current SEC investigative and enforcement activities in appropriate cases should be sufficient to deal with the SEC’s concerns. <b>TOPICS:</b>Mutual funds/passive investing/indexing, information providers/credit ratings, legal/regulatory/public policy <b>Key Findings</b> ▪ Regulatory concerns are focused on possible abuses occurring in connection with custom, foreign, and narrow-based financial indexes, as well as self-indexing procedures, used by ETFs. These abuses include improper index component selection procedures, index manipulation, misleading index descriptions, inadequate or misleading custom index disclosures, self-dealing and blurred functions between ETF advisers and third-party index providers when creating custom indexes. ▪ One suggested remedy is to deem index providers “investment advisers” under the Investment Advisers Act of 1940 (act). This result would deprive index providers of their current ability to rely on the act’s “Publisher’s Exclusion” and, therefore, require their registration with the US Securities and Exchange Commission (SEC), as well as subject them to the act’s regulatory provisions, including its fiduciary duties and obligations. ▪ It is likely that index provider regulation under the act would not provide satisfactory solutions to the SEC’s concerns but, instead, would cause disruptive effects in the current financial index ecosystem, such as increased investor costs and diminished product innovation. Rather, the application and enforcement of existing securities laws, especially those dealing with disclosure and antifraud concerns and current SEC investigative and enforcement activities, where warranted, should be sufficient to deal with the SEC’s concerns.

The Failure of Corporate Governance at Infrastructure Leasing and Financial Services Limited: Lessons Learnt

This case study investigates multiple issues related to corporate governance, regulations, auditing and financial reporting of Infrastructure Leasing and Financial Services Limited (IL&amp;FS). Combinations of these issues resulted in default in payment obligations by IL&amp;FS in August 2018 originated from the agency problem. It posed a substantial systematic risk to the whole financial system of India. This case study highlights the severe drawback of concentration of decision-making and unprofessional work ethics at the senior management level. Further, the case study also provides the opportunity to discuss the inappropriate regulations and governance practices which cause a severe problem in long-standing and prominent organizations like IL&amp;FS. Research Questions: (a) Discuss the vital role of corporate governance in major corporations and the reasons behind governance failures. (b) How did asset–liability mismatch create liquidity problems in a company which deals with long-term projects? (c) How does lack of a proper and unified regulatory framework for Non-Banking Financial Corporation (NBFC) harm investors’ interest? Link to Theory: This case study provides an opportunity to learn the role of corporate governance in NBFC. This case demonstrates the problems arisen because of agency problem and conflict of interest among real-world stakeholders. The case study also highlights the importance of assets–liabilities management in a strategically important organization like IL&amp;FS. Phenomenon Studied: This case study attempts to understand the potential problems that occurred in IL&amp;FS from the failure of good governance, lack of unified regulations for NBFCs and non-adherence of professional responsibilities by the external auditors. Case Context: The case study explores the vital role of the infrastructure development and financing companies in developing economies like India and how it may affect other vital entities of the financial system. Further, it demonstrates how unethical practices at senior management and lack of unified regulations can harm the organization. Findings: The research study found senior management’s potential involvement in unethical practices while managing the company. The financial statements did not reflect the true and fair picture of the entity, which misled investors and other stakeholders. It created chaos in the stock market, resulting in a loss to shareholders. The government set up a new board to restore the confidence of the stock market. Further, the government started to address the problems that arose. Discussions: The case of IL&amp;FS by default, at first glance, looks like a case of asset–liability mismatch due to the lack of supervisory roles of the board and senior management’s massive regulatory failure. It is shocking how under the nose of regulators like Reserve Bank of India (RBI), Securities and Exchange Board of India (SEBI) and Ministry of Corporate Affairs (MCA) a default of this scale could take place. How could IL&amp;FS group grow unchecked into a massive 348 entity. It appeared that regulators, marquee shareholders (banks and institutions), and the board of directors failed in their fiduciary obligation to regulate and supervise IL&amp;FS.

First Nations Cultural Loss: Whiteness and theTimber CreekJudgment

The Ngaliwurru and Nungali Peoples of the Country known in white law as Timber Creek commenced three proceedings under the Native Title Act 1993 (Cth) (NTA) in 1999 and 2000. The final judgment in the High Court was hailed as progressive. It was the first time that the Court had awarded damages inter alia for cultural loss under the NTA. The article contends that the compensation awarded was inadequate, being based on white, neo-liberal notions of property that do not acknowledge Aboriginal sovereignty, the depth of connection to country and loss suffered. The case also denied that a fiduciary obligation existed on behalf of the Crown, a possibility that was raised in Mabo and other cases but allowed to atrophy. Given this, it is argued that the judgment is a continuation of the colonial project based on the ‘ terra nullius’ doctrine and can be critiqued from the perspective of the white cultural privilege embedded throughout. The judgment does not disturb the skeleton of white Australia's claims to sovereignty: the taking of the land without consent, the failure to recognise First Nations sovereignty, the neglect to enter into treaties or to provide compensation in any meaningful sense.

The Domains of Loyalty: Relationships Between Fiduciary Obligation and Intrinsic Motivation

Many scholars of fiduciary law have focused—understandably—on whether the subject is a coherent field and not a piecemeal of assorted doctrinal detail. This Article looks to the future and to relationships between the formal domain of fiduciary law and other factors that shape conduct. This extra-legal domain includes intrinsic motivation as well as markets for professional services and forces like the operation of reputation. The Article demonstrates that looking across domains—from the legal to the extra-legal—casts in sharp relief the reasons why fiduciary law is distinctive. These stem from the specific qualities of relationships to which fiduciary law applies, as well as the mandatory nature of the distinctively fiduciary duty of loyalty that backstops parties who rely on the trustworthiness of others. The Article also engages with implications to be drawn from extensive behavioral research on intrinsic and extrinsic motivation. The Article argues that fiduciary law can operate to reinforce loyal conduct motivated by extra-legal factors, “crowding in” loyalty, not crowding it out. Elaborating further, the Article uses concrete examples to examine how factors beyond the law that shape conduct likely vary in significance along dimensions of variation among fiduciary relationships.

A Genealogy of Digital Platform Regulation

In this Chapter, I connect two parallel genealogies into one larger story. I develop a genealogy of the disagreements that have emerged around the notion of digital platform power and the conflicting regulatory proposals these disagreements have led to. I do so by tracing these debates’ roots in earlier 1990s debates about Internet regulation: contestations around the meaning of freedom, law, power and democracy in digital spaces. In particular, I isolate three paradigmatic views, or moments, in early Internet regulation discourse. First, anarcho-libertarian views portray the Internet as an autonomous and utopian sphere of free social interaction immune from external interferences from the state or the law. Second, liberal views include a number of different perspectives. Most notably, Joel Reidenberg and Lawrence Lessig developed the idea that code is law, that law and behavior-modifying regulation exist in digital environments, but that they manifest in different ways, most effectively through architectural and material means. Finally, a small group of critical thinkers questioned prevalent (anarcho-libertarian and liberal) understandings of cyberspace, showing that many of these views eluded the way power and commercial logics manifested and in practice governed the Internet. I ask how these three views or moments have influenced and led to a symmetric spectrum of views on how to regulate digital platforms, their power and how to promote freedom and emancipation in digital spaces. The move from an Internet of networks to an Internet of platforms represents a significant shift: from a hybrid decentralized environment where freedom seemed the norm, to a centralized and privately controlled space where the default is enclosure and digital life is dependent on a few commercial actors. In spite of this shift, the three paradigmatic views I identify with regard to platform governance remain surprisingly aligned with earlier 1990s visions. In the digital platform context, anarcho-libertarianism has retreated and morphed into a libertarian aversion to regulation as well as a series of market optimist perspectives; liberal views continue to expand, forming a vast liberal and neoliberal terrain of contestation that has absorbed large parts of anarcho-libertarian ideologies and critical tendencies in directions that include proposals for platform self-regulation, fiduciary obligations, data protection, competition and utility regulation. Finally, the terrain of critique remains fertile and is key to advancing the overall discourse on platform governance, with questions of power and surveillance capitalism now viewed as central. In mapping these perspectives, my method is genealogical. The term “genealogy” was first used by Friedrich Nietzsche in the sense I intend it here and was subsequently borrowed and re-adapted by a number of critical scholars and philosophers, importantly Michel Foucault. I adopt a genealogical method to unveil a story about the ways in which conceptions of freedom, law and power have evolved and mutated in response to new infrastructural and material digital conditions. Complacency about freedom and faith in competitive marketplaces and individual preferences has significantly conditioned and allowed the concentrated arbitrary and opaque manifestations of digital power in existence today. To avoid similar trajectories in the future, a genealogical perspective is in order.

THE FIDUCIARY SOCIAL CONTRACT

AbstractThe United States Constitution is, in form and fact, a kind of fiduciary instrument, and government officials acting pursuant to that document are subject to the background rules of fiduciary obligation that underlie all such documents. One of the most basic eighteenth-century fiduciary rules was the presumptive rule against subdelegation of discretionary authority. The rule was presumptive only; there were recognized exceptions that permitted subdelegation when it was specifically authorized by the instrument of agency, when it was validated by custom or tradition, and when it was necessary for accomplishment of the agent’s authorized purposes. To what extent might that third exception justify broad subdelegation of legislative authority by Congress to administrative agencies? Part of the answer, which is beyond the aims of this essay, depends on ascertaining the nature of the job entrusted to Congress under the Constitution, which means ascertaining the scope of Congress’s delegated powers. Another part of the answer depends on the extent to which expertise can and may serve as justification for entrusting others with tasks with which one has previously been entrusted. What would a responsible fiduciary approach to expertise—whether for purposes of advice or subdelegation—look like in the modern administrative state? The answer requires a careful examination of the idea of expertise and how it can be applied, and misapplied, in modern governance. This essay offers only the briefest introduction to that problem by trying to frame the questions that responsible fiduciaries need to ask before subdelegating authority. Such questions include: (1) What are the limits of the principal’s own knowledge? (2) What reason is there to think that gaps in that knowledge can, even in principle, be filled by experts? (3) Will application of expert knowledge lead in any particular instance lead to better decisions, given the ubiquitous problem of second-best? and (4) Have you picked the right experts, and will they actually apply expertise rather than using their claim to expertise as a cover for pursuing other goals? These questions in the context of the modern administrative state are just one aspect of a broader problem of nonexperts trying to evaluate—both before and after the fact—the work product of experts.

The Legality of Presidential Self-Pardons

The traditional understanding of the Article II Pardon Clause is that the President may grant clemency to anyone who has committed a federal offense. Yet, a question exists whether that “anyone” includes the President. The issue has arisen on three occasions: in the 1970s, when President Richard Nixon was under investigation for his involvement in crimes associated with Watergate; in the 1980s, when the Iran-Contra Investigation raised the question whether President George H.W. Bush knew about an illegal arms-for-hostages arrangement; and more recently when President Donald Trump publicly stated that he had the legal authority to pardon himself to end a Department of Justice investigation into Russia’s involvement in the 2016 presidential election. No court has ruled on the legitimacy of a presidential self-pardon, and commentators have disagreed over the issue. In my opinion, the Article II Pardon Clause allows the President to pardon himself, but the Article I Impeachment and Removal Clauses permits Congress to remove the President for doing so. Clemency was a prerogative of the English Crown. The King’s grant of a pardon was conclusive and not subject to revision by Parliament or the English courts. The Pardon Clause reflects the prerogative nature of that power. Its text contains only two restrictions—one limiting clemency to federal offenses, the other denying the President the ability to halt impeachment proceedings—and neither one prevents self-pardons. Supreme Court case law does not justify creating a self-pardon exception. As interpreted by the Court, the Pardon Clause is the last surviving remnant of the royal prerogatives. To be sure, the Take Care Clause imposes a fiduciary obligation on a President, one comparable to the obligation borne by a private trustee, to act in the best interests of his client—the public—and a President can breach that duty by excusing himself from criminal liability. But the Impeachment and Removal Clauses provide the appropriate remedy for any abuse of presidential authority, including any misuse of the pardon power. That conclusion will not satisfy anyone who believes that there must be a judicial remedy available for every wrong, but it is the best reading of the text of our Constitution.

Independent Auditor’s Report

Independent Auditor’s Report

Shareholder Primacy and the Moral Obligation of Directors

The fiduciary obligations of corporate directors is one of the most written about and important topics in corporate law. Increasingly, critics of American capitalism have urged that corporations, and implicitly corporate directors, act in a more socially responsible fashion and thus eschew the notion of shareholder primacy is the exclusive guide to a director’s fiduciary duty. On this view, directors must consider the effect of their actions on “stakeholders” other than shareholders and be guided by morality – do the right thing – when making business judgments. When directors move away from shareholder primacy, however, decision-making becomes more difficult and problematic. This article analyzes the arguments that underpin a rejection of shareholder primacy, alternatives to shareholder primacy, and the utility of morality as a guide for directors making business judgments.

Fiduciary Law and the Preservation of Trust in Business Relationships

This chapter explores the role of mandatory fiduciary obligations in preserving trust between business parties. Because contracts are inevitably incomplete, after investment there is always a risk of opportunism. While the parties could try to draft a more detailed agreement prohibiting various forms of opportunism, the very act of haggling over such protections may signal distrust, eliciting costly reactions (defensive measures/hedging/lack of intrinsic motivation) in the counterparty. In the absence of fiduciary protections, a vulnerable party may decide to forgo important protections against opportunism, not because such protections are suboptimal or hard to specify ex ante but because bargaining for them would signal distrust. By contrast, state-imposed fiduciary obligations remove the invocation of distrust by either party to the agreement. We further observe that while fiduciary protections can help prevent distrust among a small number of contracting parties, fiduciary protections may prove inadequate in some settings, especially in addressing horizontal conflicts between beneficiaries. The chapter concludes by observing that the limits of contract and fiduciary law leave a residual zone of vulnerability in which trust and other mechanisms of risk reduction play a significant role.

Legal Pitfalls of Incompatibility in the Workplace: An Examination of the Landmark Ruling on Racism in Rustenburg Platinum Mine v SAEWA obo Meyer Bester 2018 (5) SA 78 (CC)

In South African labour law, as is the position in other international jurisdictions, the contract of employment is founded on an employment relationship between employer and employee. This case note discusses the nature and scope of the implied term of trust and confidence in the relationship in relation to managerial employees, with particular emphasis on breach of fiduciary obligations as well as incompatibility (MacGregor “Racial Harassment in the Workplace: Context as Indicata SA Transport and Allied Workers Union obo Dlamini &amp; Transnet Freight Rail” 2009 Industrial Law Journal 650). This obligation of mutual trust and confidence cuts both ways (Western Platinum Refinery Ltd v Hlebela (2015) 36 ILJ 2280) and means that the employer must not behave arbitrarily or unreasonably, or so as to destroy the necessary basis of mutual confidence (Malik v BCCI [1998] AC 20 35 and Woods v WM Car Services (Peterborough) Ltd 1981 IRLR 347).Since the dawn of democracy in 1994 and influenced by constitutional changes in government, South African labour law has been drastically transformed. The new government, led by the African National Congress, had to come up with a legislative framework to deal with racism. Although the Labour Relations Act 66 of 1995 (LRA) does not explicitly deal with the question of racism at work, the importance of forging harmonious employment relationships is covered in the misconduct and incapacity in Schedule 8 of the LRA (Code of Good Practice: Dismissal). To this day, racism at the workplace remains a scourge and for this reason this case note examines the Rustenburg Platinum Mine v SAEWA obo Bester 2018 (5) SA 78 (CC)) case as its focal point. The effect of racism requires that a balance be struck between an employer’s interest in managing its business as it sees fit and the employee’s interest in not being unfairly and improperly exploited.

A student's right to freedom of education and a teacher's fiduciary obligation to support it

I feel honored to receive so many deep, critical, supportive, expanding, and thought-provoking commentaries on my original paper “A student’s right to freedom of education” from undergraduate university students, educators, and educational researchers. These commentaries involve different genres: on-the-margin contextual comments, theoretical essays, ethnographies of their pedagogical practices, reflective sharing of good and bad personal educational experiences, personal authorial opinions, critiques, students’ course evaluations, analysis of science-fiction literature, investigation of Bakhtin’s biography, video replies, a list of questions, and so on. Once Socrates complained about the print text that it is impossible to ask the text new questions – the text won’t reply to these questions. In this special essay, we tried to overcome this problem by involving each other in address-reply commentaries on each other’s texts. We want to invite the readers of this special issue to join us in our dialogues of agreement and disagreement.&#x0D; In my reply to the commentaries, I want to focus on the issues raised by the commentators that most touched me. This focus is on the relationship between a student’s authorial education and a teacher’s authorial teaching, where “teacher” is understood on a range between an individual educator and the entire society. I want to apologize in advance if I left out important concerns that some of the commentators wanted me to address (feel free to raise it again on the margin) if I severely misinterpreted their idea or point (please correct me on the margin).&#x0D; Here I focused on the following six major issues raised by the commentators. The first issue is raised by several undergraduate students from Canada, Russia, and South Korea about the possibility (and reality) of some students actively rejecting their freedom of education. Isn’t it a case for rejection of my call for a student’s right to freedom of education? The second issue raised by many commentators is about imaginary and real cases when foisted education is effective and even, arguably, more effective than student-owned education. Do these cases defeat my overall argument that student’s freedom of education is required by education itself? The third issue was introduced by my colleague and a proponent of self-directed learning Kevin Currie-Knight when he asked a deceptively simple question of what I mean by “student.” Usually, the role of a student is defined either by the institution or by the teacher, which implicitly goes against the spirit of my claim for a student’s right to freedom of education. The fourth issue eloquently raised by an Ecuadorian undergraduate exchange student, Juan Francisco Poveda, studying at the Kyung Hee University in Seoul, about whether education must be subordinated to the needs of the society. Fifth, I consider the relationship between the education-for-myself and the education-for-the-other, the new terms introduced by my Russian colleagues. My overall vista in considering this relationship is authorship: the student’s educational authorship or the teacher’s pedagogical authorship. In a disagreement with some commentators and in an agreement with some other commentators, I argue that the teacher’s pedagogical authorship must be subordinated to the student’s educational authorship through the teacher’s pedagogical fiduciary obligation. Finally, I will revisit the Kantian educational paternalism by considering the two, arguably, most powerful and extreme cases for foisted education: foisted education for the survival of the society and foisted education for a student’s agency awakening. In my conclusion, I will summarize the presented reasons for why a student’s freedom is needed for education and briefly discuss how to test my claims.

A General Defense of Information Fiduciaries

Countless high-profile abuses of user data by leading technology companies have raised a basic question: should firms that traffic in user data be held legally responsible to their users as “information fiduciaries”? Privacy legislation to impose fiduciary-like duties of care, confidentiality, and loyalty on data collectors enjoys bipartisan support but faces strong opposition from scholars. First, critics argue that the information fiduciary concept flies in the face of fundamental corporate law principles that require firms to prioritize shareholder interests over those of users. Second, it is said that the overwhelming self-interest of digital companies makes fiduciary loyalty impossible as a practical matter from the outset. This essay finds neither objection convincing. The first objection rests on a mischaracterization of corporate law, which in reality would require compliance with user-regarding fiduciary obligations—the opposite of what critics fear. The second objection fails to convince because fiduciary law has proven itself adaptable enough to survive such challenges in other settings, such as in the asset management industry. The second objection nevertheless reveals a need for greater specificity of the fiduciary duties that would be imposed under the information fiduciary model. Even so, neither objection plausibly undermines the model.

The Trust Model of Children’s Rights

Abstract Is parental control over children best understood in terms of trusteeship or similar fiduciary obligations? This essay contemplates the elements of legal trusts and fiduciarity as they might relate to the moral relationship between children and parents. Though many accounts of upbringing advocate parent-child relationship models with structural resemblance to trust-like relationships, it is unclear who grants moral trusts, how trustees are actually selected, or how to identify proper beneficiaries. By considering these and other classical elements of relationships of trust, this essay seeks to clarify and explore the trust model’s role, if any, in understanding children’s rights. Such exploration raises the possibility that another element of common law, the duty to rescue, may serve to enhance the trust model of children’s rights.

The law and problematic marketing by private umbilical cord blood banks

BackgroundPrivate umbilical cord blood banking is a for-profit industry in which parents pay to store blood for potential future use. Governments have noted the tendency for private banks to oversell the potential for cord blood use, especially in relation to speculative cell therapies not yet supported by clinical evidence. We assessed the regulatory landscape governing private cord bank marketing in Canada.Main bodyBecause the problematic marketing of private cord blood banking for future use often relates to speculative future cell therapies that do not exist and are not being advertised for current clinical use, most private blood bank marketing seems to fall outside Health Canada’s regulatory scope. However, this problematic marketing is regulated by the Competition Bureau pursuant to the Competition Act. While representations relating to future hypothetical treatments may not always be subject to the legal requirement for claim substantiation, the law also prohibits individuals and companies from knowingly or recklessly making representations that are “false or misleading in a material respect.” A representation is materially false or misleading when it could “influence a consumer’s behavior or purchasing decisions,” and consumers are likely to be considered to be “credulous and inexperienced” for the purposes of assessing an advertisement’s general impression. Because all of the potential benefit of the banking is derived from the potential future use of the biological material for health interventions directed toward the customers and their relatives, and because we know the best available medical evidence indicates a very low probability of utility in this context, we can say with confidence that some private cord blood banking claims are materially misleading. Moreover, to the extent that medical professionals are involved in private bank interactions with customers or hold ownership stakes in private banks, they are subject to professional codes, standards of practice, and potentially fiduciary obligations that further prohibit misleading marketing.ConclusionsPrivate cord blood bank marketing that advertises hypothetical future treatments can be misleading and may influence consumer behaviour. This marketing may breach existing advertising law. Regulatory bodies should enforce the law in order to help prevent public health and personal financial harm.

Billing without Bilking: Regulating Time-Based Legal Fees

Forthcoming, Dalhousie Law Journal. A lawyer should be a loyal ally for each client, and should never exploit a client for personal gain. Legal services regulation should prevent such exploitation. It should also create certainty, and foster trust in every lawyer-client alliance. When it comes to time-based legal fees, Canadian legal services regulation is not yet doing its job. Throughout Canada, rules say that legal fees must be “fair and reasonable,” and “disclosed in a timely fashion.”1 These fine sentiments are supported by long lists of factors to be considered when a legal fee is called into question and then assessed retrospectively. That is, more or less, all that the codes of conduct have to say about time-based legal fees. What we lack are clear rules and efficient procedures to determine what specific billing and disclosure practices are -- and are not -- “fair,” “reasonable,” and “timely.” The status quo gives unethical lawyers room to take advantage of inexperienced clients in niches such as family law, estate law, and employment law, in which time-based billing is common.2 It also subjects ethical lawyers, and their clients, to unnecessary distrust and disputes regarding fees. Reconciling the obvious need to charge and collect fees with the ethical obligation to practice “honourably and with integrity” raises complicated ethical issues,3 for which regulators should offer more concrete guidance. Without fixing prices or curtailing flexibility in billing arrangements, regulatory reform can create a much fairer field for agreements between lawyers and clients about time-based fees. Part 1 of this article considers first the beginning, then the middle, and finally the end of a typical retainer involving time-based billing and an inexperienced client. At each of these three junctures, we find ethical ambiguity creating both opportunities for exploitation and conflicts of interest. The vagueness of the rules requires a lawyer to unilaterally make decisions that increase or decrease the client’s bill. This creates a conflict between the lawyer’s financial self-interest, and their fiduciary obligation to put the client’s interest first. Part 2 argues for more detailed regulation of time-based legal fees, in order to prevent exploitation, create certainty, and eliminate fee-related conflicts of interest that undermine trust in the lawyer-client relationship. Wherever possible, the best practices for time-based billing already used by ethical and conscientious lawyers should be enshrined in regulation. Drawing on regulatory theory, I argue that a move from the current vague standard to more precise rules would create certainty, without significantly constraining flexibility. Part 3 turns from the rules to the procedure that is meant to enforce them. I argue that the court-based process for identifying and remedying unethical billing is inaccessible, inconsistent, and vulnerable to strategic abuse by both lawyers and clients. Making law societies fully responsible for regulating legal fees would make the system more holistic, accessible, and consistent.

The Internal Limits on Fiduciary Loyalty

Abstract: In the abstract, the limits on a lawyer’s loyalty obligations could take several forms. For example, constraints on a fiduciary’s loyalty obligations may be derived from a correct understanding of that fiduciary’s loyalty itself. Indeed, violations might count as a form of disloyalty to the client. Alternatively, such constraints could stem from obligations owed to parties other than a lawyer’s client, or even something more abstract like the rule of law. Notably, such constraints could be derived from legal principles that have nothing to do with fiduciary law. Each of these options is a conceptual possibility, contingent on the choices made by a given legal system. Constraints on a loyalty obligation that are implications of that loyalty obligation itself are defined here as internal. Constraints imposed from outside a given fiduciary loyalty obligation are defined as external. This paper seeks to deepen our understanding of a particular type of fiduciary loyalty (the loyalty owed by lawyers) by focusing on the role of such internal constraints, and in the process to elaborate on the scope of loyalty obligations more generally. This paper will also indicate why we should care about the internal/external distinction. Among other things, this distinction helps determine whether lawyers are better seen as private or public fiduciaries, and in practice it may bear on both judicial reasoning and legal compliance.

The Federal Public Trust Doctrine of Illinois Central: The Misunderstood Legacy of Appleby v. City of New York

The public trust doctrine imposes obligations and restrictions on governments in their exercise of sovereign power over property and resources of great public value. For environmental plaintiffs alleging that the federal government has breached its fiduciary obligation as a steward of natural resources, the vitality of the public trust doctrine hinges on whether courts conclude that it is exclusively a state law doctrine or also applies to the federal government. Courts have split on the issue, disagreeing over the proper scope and application of the U.S. Supreme Court’s seminal 1892 public trust case, Illinois Central Railroad v. Illinois. Several courts, including the D.C. Circuit, have leaned on an isolated quotation from Appleby v. City of New York—an obscure 1926 U.S. Supreme Court breach-of-contract case that discussed Illinois Central—for their conclusions that the public trust doctrine does not apply to the federal government. That presumed pillar of support, however, crumbles under scrutiny of the facts and reasoning of Appleby. The Appleby Court in fact recognized and ratified the broad principle of Illinois Central, under which public trust obligations inhere in sovereignty and would thus bind the federal government along with states. This Comment offers a thorough analysis of Appleby that may enable environmental plaintiffs to counter assertions that the Supreme Court has foreclosed the possibility of a federal public trust obligation. Although later Supreme Court dicta suggest otherwise, Appleby supports a conclusion that the public trust doctrine binds all sovereigns, including the federal government.

Defensive practice is indefensible: how defensive medicine runs counter to the ethical and professional obligations of clinicians.

Defensive medicine has become pervasive. Defensive medicine is often thought of as a systems issue, the inevitable result of an adversarial malpractice environment, with consequent focus on system-responses and tort reform. But defensive medicine also has ethical and professionalism implications that should be considered beyond the need for tort reform. This article examines defensive medicine from an ethics and professionalism perspective, showing how defensive medicine is deeply problematic. First, a definition of defensive medicine is offered that describes the essence of defensive practice: clinical actions with the goal of protecting the clinician against litigation or some adverse outcome. Ethical arguments against defensive medicine are considered: (1) defensive medicine is deceptive and undermines patient autonomy; (2) defensive medicine subjugates patient interests to physician interests and violate fiduciary obligations; (3) defensive medicine exposes patients to harm without benefit; (4) defensive medicine undermines trust in the profession; and (5) defensive medicine violates obligations of justice. Possible arguments in favor of defensive medicine are considered and refuted. Defensive practice is therefore unethical and unprofessional, and should be viewed as a challenge for medical ethics and professionalism.

The social media commons: Public sphere, agonism, and algorithmic obligation

ABSTRACT This paper takes a unique approach to framing the political obligation social media companies like Twitter and Facebook have in a democratic society by casting the public sphere as a common-pool resource. Over the last decade or so much of our civic discourse has moved to social media platforms such as Facebook and Twitter. This paper argues that just as citizens have an obligation to one another, social media companies have an obligation to promote agonistic forms of civic, political discourse through their algorithms. This algorithmic obligation that social media companies have must be reconciled with social media companies’ formulation of their fiduciary shareholder obligations. We posit that a commons based view of social media discourse allows these companies to make both a democratic health and fiduciary interest argument.