'Accommodating Loyalty' by Andrew S. Gold in Paul B. Miller and Andrew S. Gold (eds.)
Contract, Status, and Fiduciary Law (Oxford University Press, 2016)
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Legal and extra-legal conceptions of loyalty often diverge, most notably in fiduciary law. Some consider this divergence problematic because they see loyalty duties as moral duties, or because they see loyalty as a moral virtue. This chapter raises doubts about a moralistic view of fiduciary loyalty, in part due to difficulties in legal enforcement. Rather than seek to bring the law into a closer fit with moral understandings of loyalty, this chapter will instead suggest that the law should accommodate extra-legal conceptions of loyalty – that is, it should make space for loyal individuals to take on obligations that match their understanding of what it is to be loyal.
'The Collective Fiduciary' by Lauren Roth
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Can fiduciaries be made to serve public goals? The movement under the Patient Protection and Affordable Care Act (‘ACA’) towards universal access to health insurance requires us to focus on the fiduciary relationships between large organizations providing access to healthcare and the populations they serve. These relationships have become a collective undertaking instead of a direct, personal relationship.
In this Article, I introduce the concept of the collective fiduciary in response to the shift towards uniform, national goals in the realm of health insurance and healthcare. Only through a collective approach can we hold fiduciaries accountable for the welfare of many instead of one or a few individuals. While other scholars have focused on the individual whose fortunes or health are controlled by a fiduciary, this has made it difficult to collect information about fiduciary actions and obtain consistent and coherent decisions from fiduciaries. My argument here is that this is not a problem that can be fixed at the level of the individual fiduciary or individual beneficiary.
I examine the expansion of the role of the fiduciary as a result of growing demand for private welfare benefits in the United States. My concern here is with the expansion of health insurance and the administration of health benefits. If patients are denied benefits, then they are effectively denied access to service providers. In a space where the government has been, until now, largely absent both by choice and because of a lack of agreement on policy direction, individual decisions by fiduciaries add up to the only large scale policy existing for private benefits. Fiduciaries can and will undo the goal of expanding access to healthcare under the ACA unless ERISA’s fiduciary regime (the example I focus on in this Article) is altered. Though I explore several possible solutions, I ultimately argue that fiduciary duties are only meaningful when denials of benefit claims are supervised and capped by government actors.
