The Lost Rationale of Agency Law
The legal academy has lost sight of the rationale of agency law and tried to recast agency doctrines in the image of other areas of the law, such as contracts or torts. The misunderstanding hampers scholarship and poses a danger to the important values that agency law protects.The law of agency sets the rules for such basic concepts as representation, authority, vicarious responsibility and the loyalty duties of agents. The field rests on a simple idea: the metaphoric identification of agent with principal: the notion that, within the scope of the agency, the agent acts as the principal so that the actions of the agent are treated as the actions of the principal and the two are as one. This article reintroduces this metaphor, shows how the idea explains the law of agency and argues that the law needs the concept and the doctrines based on it to create a place for group action and team values in a legal system designed for individuals.
* Adjunct Professor of Agency Law, Chicago-Kent College of Law.