Fiduciary duty and self-interest

Lifted from comments from Linda Beale’s post Graphs Show It Clearly–the richest are much richer and most of us are poorer discussing the main points and data from David Cay Johnston’s Reuters article The richest get richer is Bruce Webb’s thinking on how the American market system was designed over time:
Defenders of Goldman who base that defense on “greed is good” reductionist understanding of capitalism are simply ignoring the legal and I would say moral structure in which banking and management were embedded: that of fiduciary responsibilities and principal/agent law.

Before Glass-Steagal repeal (and similar legal and business culture changes dating back to the fifties) there was an understanding that commercial bankers had a fiduciary responsibility to their customers,that the relation in question was one of agent to principal. And the same for management, managers were agents of the owners whether directly in a private firm, or indirectly via the Directors of either a joint-stock company or as in insurance of a mutual structure where policy holders were ‘owners’. On the other hand investment banks ad law firms and reinsurance companies like Lloyd’s and it’s ‘Names’ we’re generally set up on a partnership basis where the agents were principals, at least at top levels.

  But that distinction broke down, maybe as early as the rise of the Conglomerate and the Multinational where the link between the manager/agent and the principal/owner the principal/mutual holder became attenuated to the point of near nonexistence with the result that what had been agents, say a plant superintendent, now reported to an executive suite at ‘Corporate’ where one-time agents were de facto principals. As exemplified by the bastard blend of President and Chairman of the Boardand Chief Executive Officer into a single person whose theoretical agency relation to ownership was at best mediated through a board of Directors often largely serving under his direction.


  And this attenuation of Agent-Principal relations broke down entirely when Glass-Steagal and other actions simply smushed together the partnership and joint-stock/mutual models where the formal and legal structure remained the latter even as the decision making went with the former.

  Thus Goldman-Sachs Corporate culture. Instead of maximizing profits for the partners on one hand or for the shareholders on the other and all while maintaining a fiduciary responsibility to the customer/depositor, the executives and traders, who in law are simple hired help, i.e agents promoted themselves in their own minds to principals. Something complicated by the fact that various forms of stock based compensation made certain top executives both de facto and de jure principals quite beyond their selected/elected Chairman/CEO/President blended position.

  This obviously needs some polish, it is a blog comment after all, but I think I am on to something, something I have been bouncing around in my mind since I first took a course on Post WWII American History back in the early eighties, that is post multi-national conglomerate but prior to the barrier break represented by Glass-Steagal repeal. That is we are seeing a confluence of several streams that have mostly reduced all notions of fiduciary responsibilities and/or principal-agent law into a fetishizing of maximizing individual self-interest as if every trader at G-S was in the same legal and moral position as a medieval chapman selling goods from his pack purchased with his own money from the producer.

  So yes capitalism is organized around the principle of principals maximizing their self-interest. But not everyone is, or should be considered,a principal. And no “Well duh, capitalism equals maximizing return” does not in itself wipe out the entire legal and moral structure that grew up around it. Agency and fiduciary responsibilities still are or should be operative. That is you don’t get to operate Wall Street on the principle “We eat what we kill” no matter what some hot-shot MBA trader might think.

(Dan here…Title added, introduction edited for  clarity)

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