Fiduciary political theory: a critique.

AuthorLeib, Ethan J.
PositionIntroduction through II. Testing Fiduciary Political Theory: Three Case studies A. A Fiduciary theory of Judging 1. Are the Norms for Judges Deliberation Sensitive? p. 1820-1851

ESSAY CONTENTS INTRODUCTION I. FIDUCIARY POLITICAL THEORY: A PRECEPT AND A FRAMEWORK A. Limiting the Expansion of Fiduciary Norms B. The Structure of Fiduciary Norms 1. Deliberation 2. Conscientiousness 3. Robustness II. TESTING FIDUCIARY POLITICAL THEORY: THREE CASE STUDIES A. A Fiduciary Theory of Judging 1. Are the Norms for Judges Deliberation Sensitive? 2. Do the Norms for Judges Impose Standards of Conscientiousness? 3. Are the Norms for Judges Robust? B. A Fiduciary Theory of Administrative Governance 1. Are the Norms of Administrative Governance Deliberation Sensitive? 2. Do the Norms of Administrative Governance Impose Standards of Conscientiousness? 3. Are the Norms of Administrative Governance Robust? C. A Fiduciary Theory of International Law 1. Are the Norms of International Law Deliberation Sensitive? 2. Do the Norms of International Law Impose Standards of Conscientiousness ? 3. Are the Norms of International Law Robust? CONCLUSION INTRODUCTION

"Fiduciary political theory" is an intellectual project that uses fiduciary principles to analyze aspects of public law. (1) The idea that fiduciary principles apply to public offices (rather than solely to relationships in private law, where fiduciary norms originate) has a long pedigree, with roots in the writings of Cicero, Grotius, Locke, and The Federalist Papers. (2)

In recent years, legal scholars and political philosophers from around the globe have revived this tradition. Several fiduciary political theorists address environmental and Indian law, (3) where legal doctrines most explicitly invoke fiduciary concepts. Democratic theorists also invoke fiduciary principles to analyze the inevitability of discretion and the need for constraint that arise in basic questions of political representation and political legitimacy. (4) More recent efforts of fiduciary political theorists investigate domains such as constitutional law, (5) international law, (6) administrative law, (7) election law, (8) the law governing public officials, (9) and even the basic structure of political authority. (10)

This Essay provides a framework for analyzing the usefulness and limitations of fiduciary political theory. Our thesis is that fiduciary principles can be fruitfully applied to many domains of public law. However, other domains are incompatible with the basic structure of fiduciary norms. In these domains, fiduciary political theory is not viable. The main contributions of this Essay are to reveal the underlying structure of fiduciary norms and to show when fiduciary political theorizing is likely (or unlikely) to work. (11)

Toward these ends, we highlight three features of fiduciary norms that differentiate them from norms of contract, tort, and criminal law. First, fiduciary norms impose deliberative requirements: they make specific types of demands on an agent's deliberation in addition to her behavior. Second, complying with fiduciary norms requires a special conscientiousness. Living up to a fiduciary obligation depends not only on how an agent behaves and deliberates, but also on whether she does so for the right reasons. Third, fiduciary norms impose what Philip Pettit calls "robust" demands, (12) which require the fiduciary to seek out and respond appropriately to new information about the interests of her beneficiaries.

Fiduciary political theory is not viable in public-law domains where any of these core features of fiduciary norms are inapposite. In other words, fiduciary political theorizing is unlikely to work in legal contexts where behavior, rather than deliberation, is the coin of the realm; where any way of conforming to a norm counts as living up to it; or where norms do not impose robust demands.

Part I of this Essay develops the claim that fiduciary norms should be applied only in public-law contexts that are compatible with the basic structure of fiduciary norms. It then provides a framework for determining whether and when fiduciary political theorizing is likely to be viable.

Part II analyzes several recent efforts to apply fiduciary principles to domains of public law through the framework developed in Part I: judging, (13) administrative governance, (14) and international law. (15) We conclude that fiduciary theories of judging explain certain aspects of judicial norms better than prominent theories offered by Ronald Dworkin (16) and Judge Richard Posner. (17) By contrast, the viability of fiduciary theories of administrative governance is an open question. Whether the fiduciary theory is superior to alternatives (like the instrumentalist theory of administrative governance developed by Adrian Vermeule18) turns on a deeper dispute about whether administrative law reflects a culture of justification. Finally, our analysis suggests that fiduciary political theories of international law are unlikely to succeed. Fiduciary norms are structurally incompatible with the domain of international law because compliance with international-law norms is a function of how states behave, rather than how they deliberate or why they behave as they do.

  1. FIDUCIARY POLITICAL THEORY: A PRECEPT AND A FRAMEWORK

    This Part first offers a limiting precept for fiduciary theorizing about public law (in Section I.A) and then (in Section I.B) provides a framework to analyze when fiduciary norms are compatible with a domain of public law.

    1. Limiting the Expansion of Fiduciary Norms

      A fiduciary relationship traditionally emerges in contexts where one person (the fiduciary) has discretionary power over the assets or legal interests of another (the beneficiary). (19) Standard private-law examples of fiduciary relationships include attorney-client, trustee-beneficiary, corporate officeholder-shareholder, and guardian-ward. (20) In such relationships, the fiduciary has discretion to act on behalf of the beneficiary. The beneficiary is vulnerable to the fiduciary's predatory or self-dealing actions within this discretionary sphere, yet must still repose her trust in the fiduciary. The fiduciary is obligated to prioritize the beneficiary's interests over her own. (21) At least three general indicia characterize fiduciary relationships: discretion, trust, and vulnerability. In relationships exhibiting these indicia, a fiduciary is subject to specific duties--usually, duties of loyalty and care--that govern her actions on behalf of the beneficiary.

      There are several good reasons to interpret public-law relationships in light of fiduciary norms. First, there is considerable historical precedent for thinking about public-law relationships in this way. (22) Second, the architecture of the fiduciary relationship often fits the obligations of public officeholders, allowing fruitful analogies from private law to public law. Third, fiduciary political theories are grounded in inherent features of authority, rather than the consent of the governed. Thus, the fiduciary political theorist can address fundamental questions about political authority while avoiding issues related to consent that have befuddled political theorists (particularly those in the social-contract tradition) for hundreds of years. (23) In identifying what makes an exercise of power legitimate, the fiduciary political theorist focuses on how that power is actually used, rather than solely on the etiology of the institutions that purport to exercise it.

      Despite these synergies, some scholars doubt the viability of fiduciary political theory on the basis of putative disanalogies between public and private law. (24) However, this kind of skepticism reaches only some types of fiduciary political theory--namely, those that seek to analogize private-law fiduciaries with public-law actors. Such skepticism does not indict fiduciary political theory as such. Our focus here is on a broader, more structural concern. The most serious possible objection to fiduciary political theory--one that threatens the enterprise as such--is that private-law fiduciary norms are fundamentally incompatible with the structure of public-law norms.

    2. The Structure of Fiduciary Norms

      What, then, are the features of fiduciary norms that determine the viability of fiduciary political theory? Attempts to answer this question have proven contentious. Scholars of fiduciary law disagree about the contours and content of fiduciary norms. For example, they disagree about the bases of fiduciary norms, what obligations they impose, and how fiduciary norms differ from nonfiduciary norms. (25) Some contend that fiduciary norms have a uniform content or structure, while others argue that notions like loyalty and care vary substantially across contexts. (26) Further, commentators disagree about whether the legal instantiations of fiduciary notions like loyalty resemble nonlegal analogues of those concepts. (27) Our goal here is not to resolve these debates.

      Rather, abstracting from disagreements about the substance of fiduciary norms exposes important structural features of fiduciary norms. In this Section we identify three such structural features that are crucial to understanding how fiduciary norms differ from other kinds of legal norms. Our analysis does not presuppose any particular substantive account of the grounds, contours, or content of fiduciary norms. As such, each of the features we identify can be appreciated by almost all fiduciary legal and political theorists. (28)

      First, fiduciary norms govern deliberation in addition to behavior (Section I.B.1). An agent who does not deliberate in the way that a fiduciary norm calls for thereby fails to live up to that norm, no matter how she behaves. Second, fiduciary norms impose standards of conscientiousness (Section I.B.2). Some ways of conforming one's behavior and deliberation to the requirements imposed by a fiduciary norm nevertheless violate that norm. As a result, fiduciary norms invite what are sometimes called "wrong lands of reason" problems. Third, fiduciary norms are robustly...

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