8 - Commentary on Meinhard v. Salmon

Summary

Meinhard v. Salmon found a heightened duty of loyalty among joint adventurers: the duty of finest loyalty. Famously, Chief Judge (and later, Associate Justice of the United States Supreme Court) Cardozo wrote that trustees are held to “not honesty alone, but the punctilio of an honor the most sensitive.” Professor Christine Hurt comments on the missing history surrounding the relationship of Meinhard and Salmon and the condition of the United States at the time the underlying transactions took place. Professor Dalia Mitchell, rewriting the Meinhard opinion as Justice Mitchell, reaches the same conclusion but through vulnerability theory and the feminist widening the lens method. In doing so, she considered the history, context, and persons affected by the outcome in a way unique to the rewritten opinion. The original opinion is critiqued for essentially providing the utmost care or no duty whatsoever with nothing in between. Notably, the initial decision only takes the contractual relationship between Meinhard and Salmon into account. Under vulnerability theory, the opinion should consider the overall context of joint adventurers’ relationships to reach more equitable decisions.