Toward a horizontal fiduciary duty in corporate law

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Fiduciary duty is arguably the single most important asÂpect of our corporate law system. It consists of two distinct subduties-a duty of care and a duty of loyalty-and it apÂplies to all directors and corporate officers. Yet, under extant law, the duty only applies vertically, in the relationship beÂtween directors and corporate officers and the firm. At preÂsent, there exists no horizontal fiduciary duty: Directors and corporate officers owe no fiduciary duty to each other. ConseÂquently, if one of them fails her peers, they cannot seek direct legal recourse against her even when they stand to suffer significant reputational and financial losses. This state of afÂfairs is undesirable not only from a fairness perspective, but also from an efficiency standpoint as it raises governance costs for firms and may undermine their ability to attract skillÂful officers and directors. In this Article, we call for the introduction of a horizontal fiduciary duty among directors and corporate officers. The proposed duty would complement, rather than replace, the fiduciary duty that corporate officers owe the corporation and the shareholders. We argue that the institution of a horizontal fiduciary duty would (1) lead to improved decision making and information sharing on boards; (2) enable board members to vindicate themselves in situations in which another board member is the one to breach the fiduciary duty; (3) attract more capable individuals to serve as directors; and (4) improve corporate management and governance.

Original languageAmerican English
Pages (from-to)803-854
Number of pages52
JournalCornell Law Review
Issue number4
StatePublished - 2019
Externally publishedYes

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