Article. Abstract:
This essay investigates the structure of fiduciary obligations, specifically the obliga-
tion of loyalty. Fiduciary obligations differ from promissory obligations with respect
to the possibility of “accidental compliance.” Promissory obligations can be satis-
fied through behavior that conforms to a promise, even if that behavior is done for
inappropriate reasons. By contrast, fiduciary loyalty necessarily has an intentional
dimension, one that prevents satisfaction through accidental compliance. The inten-
tional dimension of fiduciary loyalty is best described by what we call the “shaping”
account. This account both explains the conscientiousness that loyalty demands and
improves on other accounts of the intentional dimension of loyalty. Our analysis
challenges two of the most prominent ways of conceptualizing fiduciary obligations.
“Contractarianism” configures fiduciary obligations as a species of contractual duties.
The view that we call “proscriptivism” reduces fiduciary obligations to the juridical
prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory,
because each neglects the intentional dimension of fiduciary loyalty.