Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Robert Stevens states that he has some difficulty in defining accurately the category of fiduciaries and suspects that because the category "nearly a fiduciary" is impossible to define "the courts will simply deem a party to be a quasi-fiduciary when they want to reach the result that the gain must be given up."

I wasn't suggesting that we need to create a category of "quasi-fiduciary." Rather, as Steve Hedley surmises, I can't understand -- unless I am missing something (which may well be the case: I'm far from being an expert on English law and didn't follow closely the Blake litigation) -- what nontechnical reason can justify the view that information obtained by fiduciaries is not protected after termination. While I concede that a vague statement that Blake is like a fiduciary isn't sufficient to address objections to the survival of some of the fiduciary duties post-termination (and potentially for life), it is hard for me to figure out any principled defense of their termination.

I tend to think of a fiduciary relationship (and here I also try to complete my response to Robert Stevens) in the way suggested by Ernest Weinrib, namely: as a relationship in which one person's interests are subject to another discretion. It is this core feature of the fiduciary relationship that makes the duty of loyalty (as well as certain ancillary duties) a necessary incident of this relationship.

If we believe that fiduciaries should be deterred from breaching this duty, we should apply a remedy that takes the bite out of their breach, namely: a profits-based recovery. (Here I merely summarize and somewhat simplify my argument in The Distributive Foundation of Corrective Justice, 98 Michigan L. Rev. 138, 157-162 (1999) in connection to the US Sup Ct Snepp case regarding agents as unauthorized authors.)

If this is the reason why we provide this type of remedy during the pendency of the service of secret agents (and other fiduciaries), it is difficult for me to understand how (that is: why) the analysis changes once their service is terminated insofar, of course, as the information they secured while in service is concerned.

Hanoch Dagan
Affiliated Overseas Professor
University of Michigan School of Law
625 South State Street
Ann Arbor, MI 48109-1215
(734) 647-7352 (o)
(734) 764-8309 (fax)