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Where public law is absent or fails, the search for a new accountability framework has led to a proliferation of the fiduciary concept beyond its traditional private law boundaries. Indeed, Professor David Pozen speaks of “fiduciary creep.” Pushing back against one emergent fiduciary model, Professors Lina Khan and Pozen offer A Skeptical View of Information Fiduciaries. Their thoughtful critique responds to Professor Jack Balkin, who has argued that the law should treat online service providers as “information fiduciaries,” based on an analogy to the fiduciary duties of professionals such as lawyers and doctors. Balkin defines an information fiduciary as “a person or business who, because of their relationship with another, has taken on special duties with respect to the information they obtain in the course of the relationship.”
* Associate Professor of Law and Political Science, Northeastern University.