Fiduciary principles and the jury.

• Author: Leib, Ethan J.
• Position: The Civil Jury as a Political Institution

Abstract

This Essay argues that because jurors exercise state authority with wide discretion over the legal and practical interests of other citizens, and because citizens repose trust and remain vulnerable to jury and juror decisions, juries and jurors share important similarities with traditional fiduciary actors such as doctors, lawyers, and corporate directors and boards. The paradigmatic fiduciary duties--those of loyalty and care--therefore provide useful benchmarks for evaluating and guiding jurors in their decision-making role. A sui generis public fiduciary duty of deliberative engagement also has applications in considering the obligations of jurors. This framework confirms much of what we know about the jury's form of political representation and also recommends some practical directions for jury reform.

TABLE OF CONTENTS INTRODUCTION I. FIDUCIARY POLITICAL THEORY A. Political Representation B. Private Fiduciaries C. Public Fiduciaries II. THE JUROR & JURY AS FIDUCIARIES A. Discretion, Trust, and Vulnerability in the American Jury 1. Discretion 2. Trust 3. Vulnerability B. Mapping the Fiduciary Relationship in the Jury Context III. JURIES' AND JURORS' FIDUCIARY OBLIGATIONS A. The Duty of Loyalty B. The Duty of Care C. Deliberative Engagement D. Is Juror Fiduciary Obligation Sufficiently Juridical? CONCLUSION INTRODUCTION

The American jury has long been considered a political institution, (1) rooted in a deep tradition of representative self-government. (2) But in what sense is the jury part of our system of democratic representation? By applying random and compulsory juror selection procedures, the jury system seeks jury pools that reflect a given jurisdiction's diversity. (3) This is representation in its descriptive valence. (4) From this vantage point, the jury aspires to be among the most representative political institutions in American political life. (5) Yet diverse juries are not a sure path to justice. (6) Beyond descriptive representation that is so much a focus of jury scholarship (7) and jurisprudence, (8) there is also a normative component of political representation in the jury: it is generally believed that representatives stand in for, and must act in the interests of, those whom they represent. (9) This Essay explores the normative dimension of the jury's political representation.

Scholars and courts have not completely missed that jurors are political representatives in a normative sense, of course. (10) But they have not generally brought us back to basics to unpack fundamental political-theoretic concepts of democratic political representation that might illuminate this institution of representative self-government. Any proper understanding of the jury's representative function should have something to say about three basic questions of democratic representation (11): who is to be represented, how they are to be represented, and what institutional arrangements are likely to secure high-quality representation. Although these questions are a staple of political science and political philosophy as they pertain to elected officials, they have generally (although not entirely (12)) been overlooked in contexts in which lay citizens assume representative roles. (13)

These questions--who should be represented, how they should be represented, and which institutions can help guarantee representation--are not unique to democratic political representation. The private law asks these questions in relationships in which one actor or set of actors, a "fiduciary," is charged with representing the interests of another or a class of others, a "beneficiary." (14) The private law has developed a rich set of legal principles used to analyze and structure these representative relationships. (15)

In general terms, fiduciaries exercise discretionary power over the legal and practical interests of beneficiaries. In fiduciary relationships, a beneficiary is vulnerable to a fiduciary's potentially predatory or self-dealing actions, yet must still repose her trust in the fiduciary. Because of the power dynamics in these relationships, the law traditionally imposes substantial duties upon fiduciaries as a way of keeping them in line and incentivizing them to prioritize their beneficiaries' interests above their own. (16) Here, we argue that the body of jurisprudence emerging from the law's engagement with these principles, fiduciary law, can be brought to bear on relationships of political representation in the public sphere, thereby shedding light on the jury's role as an institution of democratic representation. (17)

The Essay proceeds in three parts. Part I argues that although fiduciary principles have been developed and applied mostly in private law contexts, the same principles nonetheless apply to the exercise of state authority by public officials. (18) The characteristics of a fiduciary relationship--discretion, trust, and vulnerability--are also constitutive of relationships of political representation.

Part II then considers whether the fiduciary model of governance has application to the jury. We first explain why the jury's authorization to engage in discretionary state action (19) and apply the coercive force of the state--when viewed in the light of the concomitant vulnerability and need for trust by the populace--satisfy the tripartite indicia characteristic of a fiduciary relationship. We thereafter address two relational questions central to applying fiduciary principles to those representative relationships that involve multifarious actors: First, who, precisely, is the fiduciary? The juror as an individual? The jury as a group? Both the juror and the jury? Second, who, precisely, is the beneficiary? The litigating parties? The "people"? Both the litigating parties and the people? (20)

After concluding in Part II that both the individual juror and the petit jury as a wholare fiduciaries for "the people," Part III considers the attendant fiduciary obligations that flow from this role. Part III specifies three public fiduciary duties--the duty of loyalty, the duty of care, and the duty of deliberative engagement--and discusses their potential application to the practice of juror representation. Some of these duties, upon further analysis, reflect long-established jury practices, whereas others are novel, suggesting potential avenues of jury reform.

Ultimately, we conclude that a fiduciary model of the juror and jury has much to add to our understanding of the jury. It not only illuminates the jury's role as a representative institution, but it also recommends ways of improving the orientation of jury service while providing the citizen-juror with practical guidance as to how to carry out her representative function.

1. Fiduciary Political Theory

   This Part explains why fiduciary principles provide a useful lens through which to understand power exercised by public officials. We highlight some basic questions raised by representative relationships in the public sphere and then explain how the private law of fiduciaries addresses some of these questions. We conclude this Part by setting forth the functional and historical arguments for viewing political representatives as public fiduciaries.

   1. Political Representation

      Popular sovereignty and representative government share an uneasy relationship. What does it mean for "the people" to rule themselves when decisions are usually being made by a select few representatives? Ballot-casting is intermittent--every two, four, or six years--and hardly constitutes a regular, direct, or discrete form of self-rule--especially when one considers that many citizens vote for candidates who lose. And what of many bureaucrats and judges, who not only wield enormous authority, but were never elected and are often difficult to remove from office? Political theorists of democracy have grappled with these questions for centuries. Questions about which constituent or principal the representative is to serve--the district, the state, or the nation as a whole--as well as the function the representative is to play--as trustee, as delegate, or as mirror--abound.

      Not surprisingly, then, political philosophers have attempted to expound accounts of representation that seek to provide norms and standards for evaluating and guiding representative performance. (21) Given how much power state officials wield in the name of "the people," and how limited "the people" are in their ability to monitor and control representatives' actions, some ethical precepts are necessary to help ensure that governors indeed act after the interests of the governed. (22) But where might such precepts be found? One potential solution is to consider whether analogous situations of representation exist and, if so, to explore whether they have anything to teach us about the best way to think about the work that public officials do.

      In the next Section, we explain how many of the challenges political representation pose are not unique to the public sphere. They surface in countless contexts in which one party (the representative) is charged with attending to the interests or assets of another party (the represented), but the principal cannot fully monitor or compel her representative's actions. The private law addresses these types of representational relationships through the application of fiduciary principles.

   2. Private Fiduciaries (23)

      The private law routinely encounters similar questions about representation in which one actor is charged with representing and acting for the interests of another. Such relationships include, for example, those between attorneys and clients, agents and principals, trustees and beneficiaries, and corporate officeholders and shareholders. (24) In these relationships, one actor has been delegated legal authority to make decisions that bind another, giving rise to inquiries about the nature of the power relationship between the parties, the types of...