Gordon Smith laments that, at the AALS meeting of the Section on Agency, Partnership, LLCs, and Unincorporated Associations, on "What's Left of Fiduciary Duty?", "the word "contract" was articulated with venom."
How true, and how unfortunate. There is much to be done with unincorporated firms. Lawyers are innovating, new organizational forms are coming on line, courts are deciding cases, and contracts are rapidly evolving. This is a rich area for new theoretical and empirical work. I think this was indicated by the University of Illinois’ Conference on the Uncorporation I organized in Chicago in 2004, recently published by the Illinois Law Review (2005, no. 1), to which Gordon, among many others, contributed.
At the AALS, Mark Loewenstein presented a worthwhile paper on how the results of cases are fact driven and usually not driven by broad fiduciary principles. I invite others to look at what the courts are actually doing in this area. I read virtually all partnership and LLC cases, and find the results quite fascinating.
Alas, the rest of the papers that I saw (I missed one) moralized about the evils of “contractarianism.”
This is a relatively new section of the AALS. I hope it does not squander the intellectual opportunities that are available to it.
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