Tuesday, July 22, 2008
I make a big deal out of Cardozo's opinion in Meinhard v. Salmon. The paragraph in which he defines the fiduciary duty among co-venturers in a business is as close to poetry as any legal opinion has ever come.
Here it is, in all its glory:
Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the "disintegrating erosion" of particular exceptions (Wendt v. Fischer, 243 N. Y. 439, 444). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.
All I wanted to do was to somehow work the line with the punctilio into a Limerick. That is indeed all I have done. The point of the fourth line is that I have often found that students find Cardozo's prose inpentrable and thus lose interest before they can apprehend his penetrating thoughts.
Meinhard v. Salmon
Among partners, in matters compensative,
Cardozo, opining most pensative
Held out as the standard --
As attention meandered --
The punctilio of an honor most sensitive.