Andrew S. Gold (University of California, Irvine School of Law) and Genevieve Helleringer (University of Oxford – Institute of European and Comparative Law) have posted Finding Loyalty in Good Faith (Theoretical Inquiries in Law, Vol. 27(2), 2026, forthcoming) on SSRN. Here is the abstract:
The merits of contractual loyalty duties have been obscured by two leading views on loyalty. The first view, associated with the law and economics movement, tends to see fiduciary loyalty as contractual across the board. The second view claims that by its very nature loyalty cannot be contractual. This Article views the conceptual landscape differently. It contends that legal duties of loyalty are sometimes contractual, and sometimes not. And, on this view, contractual duties of good faith can also be understood as loyalty duties (even if in some jurisdictions that view is rejected).
This Article adopts a thin conception of loyalty—defined as “taking the side” of the object of loyalty—to argue that loyalty can be contractual. In doing so, it suggests that instantaneous or transactional loyalty is consistent with both the “ordinary sense” of loyalty and with various legal practices, such as oaths of office and professional mandates. In turn, adopting this perspective invites a significant range of policy questions that are otherwise much harder to assess.
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