Post by Andrew Gold
Some of the more interesting puzzles in private law involve the boundaries between subfields. Here is a recent example that implicates contract law and fiduciary law. In 2013, the Delaware Supreme Court expressly recognized a contractually created fiduciary duty of good faith. See Gerber v. Enterprise Products Holdings, LLC, 67 A.3d 400, 418 (Del. 2013). From different perspectives, several theorists have recently argued that there are qualitative differences between contractual and fiduciary duties. See Daniel Markovits, Sharing Ex Ante and Sharing Ex Post: The Non-Contractual Basis of Fiduciary Relations, in Philosophical Foundations of Fiduciary Law 209 (Gold & Miller, eds.) (2014); Stephen R. Galoob & Ethan J. Leib, Intentions, Compliance, and Fiduciary Obligations, 20 Legal Theory 106 (2014). See also D. Gordon Smith, Contractually Adopted Fiduciary Duty, 2014 U. Ill. L. Rev. 1783, 1792 (arguing that a duty arising from the language of a contract should be considered a contractual duty). Which view is right?