ERISA strictly regulates fiduciaries. While ERISA’s fiduciary rules were abstracted from state trust law, several important departures exist. Congress adopted a broad functional definition of fiduciary so that all decision makers – not just asset managers (traditional trustees) – can be held accountable. Importantly, however, decisions by employers respecting the design, establishment, or modification of an employee benefit plan are not fiduciary acts for they do not implicate program management (the so-called settlor versus trustee distinction). ERISA specifies a stringent set of fiduciary duties, including four major obligations: loyalty; prudence; compliance with plan terms that do not violate ERISA; and (generally) investment diversification. Plan provisions that would excuse fiduciary breach (exculpatory clauses) are explicitly barred. In addition, certain transactions involving insider dealings with the plan are prohibited regardless of fairness or whether loss ensues. Fiduciary liability with regard to participant-directed investments has received careful attention from both courts and regulators and is specially examined in the chapter.

This letter comments on the affinities between prudence and moderation. It starts from the definition of prudence given by the sixteenth-century Spanish writer Baltasar Gracián in his classic book, The Pocket Oracle and the Art of Prudence (1647), and then examines the different faces of prudence as illustrated by Titian’s famous Allegory of Prudence.

This chapter explores the relationship between political moderation and realism and shows that moderation properly understood and practiced is compatible with pragmatic partisanship. It shows that at the core of moderation lies a certain propensity to self-subversion (the term borrowed from A. O. Hirschman).

This chapter addresses the book’s first question by focusing on the Realist critique of classical Pragmatism. This insists that political interests corrupt processes of social learning and argues that power determines how best practice (and the public good) is defined. This criticism was levelled directly at Dewey by his contemporaries, especially Morgenthau and Niebuhr, and it continues to inform neorealism. Inspired by Dewey’s response, the chapter argues Pragmatism is not blind to power or self-interest, it simply emphasizes, like contemporary IR constructivists, that understandings of the self (its identity and its interests) are not fixed; they are instead contingent on the self’s experience of interacting with its material and social environment. The normative implication for Pragmatists is that theorists should render that process intelligent by subjecting it to ‘conscientious reflection’. That process is a political one to the extent access to a community of inquiry is contingent on power. Part of the Pragmatist ‘vocation’ is a commitment to balancing political power by supporting Deweyan ‘publics’: those who are indirectly affected by practice but excluded from the relevant communities of practice. The chapter concludes by reflecting on the implication for key concepts in Realist and Pragmatist thought, including tragedy, prudence and learning.

The theory of obligation addresses the central ethical question of what we ought to do. The theory of moral creditworthiness concerns motivation appropriate to fulfilling obligation. The theory of manners of actions concerns how they are performed. The triple-barreled theory of moral conduct the book develops integrates these dimensions of behavior. The theory covers obligatory deeds – the types of things we ought to do – the vehicles of conduct: concrete doings that are right or wrong in virtue of their type, morally or non-morally motivated by intentions that explain them, and morally appropriate or inappropriate in manner in virtue of how they are performed. Among the central moral principles examined are those of justice and harm-avoidance, veracity and fidelity, beneficence and self-improvement, and reparation and gratitude. How are these to be understood? Are some reducible to others? This chapter clarifies these principles through both narrative examples and conceptual exploration.

Prudence is the ability to determine the right course of action for a given situation. The virtue is fundamentally concerned with what we should do to achieve a desired objective, rather than what we should believe. Prudence is also a translation of Aristotle’s concept of phronesis (practical reason), which the Nicomachean Ethics defines as an “excellence of deliberation” (VI.9.9). In his formulation, Aristotle emphasizes the rightness of the ends being pursued, unlike several premodern and modern theories focusing only on the ability to attain desired ends, and which develop a somewhat uneasy relationship between prudence and virtue. Shakespeare makes the ethical challenges of prudence integral to The Merchant of Venice, a play featuring many deliberations over the means to such ends as happiness, wealth, friendship, and love. Throughout the play, Shakespeare takes a largely Aristotelian approach to prudence: characters who “hazard all” to gain noble ends are depicted as the most prudent, while the “shrewd,” who deliberate well but for immoral objectives, inevitably fail. Still, Shakespeare adds a final constraint to the virtue, suggesting that prudence is not a static trait but a dynamic effort to uncover one’s blind spots – and thus a virtue that few can hope to master.

This chapter considers the role of Shakespearean theater in fostering the cardinal virtues: prudence, justice, temperance, and courage. Shakespeare offers an especially compelling site for investigating this topic in act 3.2 of Julius Caesar. Here, Mark Antony addresses the plebeians in the wake of Caesar’s assassination using the latter’s bloody mantle (i.e. cloak) as an object lesson in civic and moral failure. This scene, the chapter argues, has something important to teach us about the theatricality of the cardinal virtues, including, especially, the object-specific way in which particular things enable general moral insights. As this suggests, the cardinal virtues do not so much offer scripts for the cultivation of inner qualities as they do a community-oriented set of practices grounded in the capacity of humans to think, feel, and discern together. Put another way, the cardinal virtues are a social logic or dynamic, rather than personality traits or individual moral attributes. Like theater itself, they provide a linked set of frameworks for physical, emotional, and ethical participation in the world.

This chapter explores ideas about orthodoxy and powerful necessity in Spanish Counter-Reformation reason-of-state discourse. Individual authors engaged in describing pragmatic politics and ways of imagining how to put these into practice, while simultaneously taking care to avoid association with Machiavelli. Through translations of Lipsius’ Latin Politica into the Spanish and Italian vernaculars, the chapter first shows how the translators explored ways to square Lipsius’ thought with the Christian-Ciceronian framework endorsed by Catholic orthodoxy. Lipsius recovered the concept of necessity that Machiavelli had reshaped into necessità, and enlisted it once more as a force that could legitimately overrule human law. The chapter then traces how authors in the Spanish monarchy subsequently conceived of necessity as a concept or tool that could legitimize amoral political behaviour, especially in the discussion about deceit. Necessity depended on circumstances that were impossible to define in advance, and this made it orthodox yet flexible. Both the translators and the authors of ‘true’ reason of state experimented with organizing knowledge and (historical) information, and its potential for creating meaning and legitimizing amoral political behaviour, as they tailored a language of reason of state that was both orthodox, and suited to the realities of the present.

Mrs. Pritchard became the director of a family-owned reinsurance firm, Pritchard & Baird Intermediaries Corp (P & B), following the death of her husband. Mrs. Pritchard’s two sons were executives of the company, which eventually went bankrupt. The plaintiff, trustee of the P & B’s bankruptcy estate, filed this suit against the deceased Mrs. Pritchard’s estate claiming she was negligently liable as director for the over $10 million her sons improperly removed from the firm. The feminist rewrite agrees with the original opinion that Mrs. Pritchard was negligent in her role of corporate oversight, but it deviates by arguing Mrs. Pritchard was not negligent for failure to notice the financial issues because she should not have been expected to understand the intricacies of the business of which she served mostly as the figurehead and emotional glue. The rewritten opinion points out the implicit bias built within the New Jersey directors’ duty statute, which refers to “prudent men.” The commentary argues Mrs. Pritchard chose not to extend great care because she was not compensated or given much actual power within P & B. The commentary also critiques the rewritten opinion’s dismissiveness of Mrs. Pritchard’s corporate knowhow as not feminist enough.

Many trusts are established specifically to facilitate investment activity. Many managed investment schemes and most superannuation funds, for instance, employ the legal architecture of the trust. Parties may also create specialised trust structures that are not open to the public in order to arrange their investment affairs. The trust is a convenient device to enable a collection of investor monies under the management control of a party with experience and skills in the business of investing. The need for a trustee to invest trust assets can arise in other circumstances. The most obvious of these is where the trust is expected to exist for some time and has assets that are not specifically nominated in the trust instrument as assets that must be held by the trustee. In this situation, a trustee is likely to be subject to a duty, implied from the circumstances of the trust, to invest unallocated assets. This chapter examines the rules that apply to the investment of trust funds. It takes the statutory regime as its starting point but also illustrates the interplay between the statutory and general law rules that apply in different contexts.

Chapter 2 is on the distinction between intellectual and moral virtue, which was first clearly delineated by Aristotle. Moral virtues correspond to what are most commonly recognized to be virtues, such as justice and courage. Intellectual virtues are habits of knowing that do not on their own make the agent good. Prudence, however, is significant as an intellectual virtue precisely because of its connection with the moral virtues. Prudence depends on moral virtue, and each moral virtue depends on prudence. Thomas emphasizes that the one virtue of prudence covers the material that belongs to all of the distinct moral virtues.