Fiduciary political theory: a critique.

AuthorLeib, Ethan J.
PositionII. Testing Fiduciary Political Theory: Three Case studies A. A Fiduciary theory of Judging 2. Do the Norms for Judges Impose Standards of Conscientiousness? through Conclusion, with footnotes, p. 1851-1878
  1. Do the Norms for Judges Impose Standards of Conscientiousness?

    Here, too, an affirmative answer seems clear. Not just any way of satisfying the behavioral or deliberative requirements of norms for judges will count as compliance. For example, Canon 1 of the Model Code of Judicial Conduct instructs that a judge must "uphold and promote the independence, integrity, and impartiality of the judiciary, and ... avoid impropriety and the appearance of impropriety." (125) A judge whose actions have the tendency to promote the "independence, integrity, and impartiality of the judiciary" but who nonetheless fails to "uphold" these values would therefore fail to comply with this norm.

    Another way to appreciate that the norms for judges impose standards of conscientiousness is to note that these norms, like fiduciary norms, are subject to "wrong kinds of reasons" problems. The Conspiring Judges scenario demonstrates this susceptibility. In that case, Judge Rivers asks Judge Seagull to reduce the charge against Khan. That your fellow judge asks you to reduce the charge can be a powerful reason to do so. However, this consideration is not within the shared set of reasons applicable to legal officials. It is, therefore, the wrong kind of reason for reducing the charge. In acting on it, Judge Seagull violates the norms for judges.

    The alternative theories of judging fail to appreciate the conscientiousness standards implicit in the norms for judges. In the terms we introduced in Section I.B.2, pragmatic adjudication is generally agnostic about compliance. To the extent that outcomes are what matter fundamentally, any way that a judge reaches the correct decision is, in principle, as good as any other way. Posner's agnosticism is both explicit and general: on his view, "[h]ow the judge arrives at his decision is ... a 'meta-legal' question without interest" in establishing whether a judge has done his job. (126)

    Dworkin's view is also agnostic regarding much of the judge's role, although this agnosticism is less explicit and more cabined. Dworkin's position would allow that integrity imposes compliance standards (and invites "wrong kinds of reasons" problems), but only regarding what Dworkin calls "matters of principle," or standards that are to be observed as basic "requirement[s] of justice or fairness or some other dimension of [political] morality." (127) By contrast, matters of policy, which set out "a goal to be reached, generally an improvement in some economic, political or social feature of the community," (128) do not call integrity into question and therefore do not impose standards of compliance. (129) How the "law as integrity" theory would analyze the Conspiring Judges case depends on whether classifying criminal charges as a misdemeanor or felony is a matter of principle or a matter of policy. The latter classification seems better supported by Dworkin's description of his view. (130) If so, then the "law as integrity" theory would conclude that there are no conscientiousness standards for this aspect of the judge's role, and that "wrong kinds of reasons" problems are inapplicable in this case.

    To summarize, the norms for judges impose standards of conscientiousness. The fiduciary theory can explain these standards while alternative views cannot do so easily, if at all.

  2. Are the Norms for Judges Robust?

    The norms for judges are also robust, in both the "morphing" and "updating" senses described in Section I.B.3. The morphing quality of these norms is captured by the widely acknowledged notion that judicial responsibilities are open-ended. (131) The "updating" quality of these norms is evidenced in the idea that a judge's decisions must be sensitive to new information. There are, of course, limits to (and debates about) the kinds of updating that judges must or may do. To wit, Rule 2.9(c) of the Model Code of Judicial Conduct states that a "judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed." (132) Whatever the proper scope of judicial updating, however, it seems obvious that a judge can be required to conduct some sort of due diligence as part of the fulfillment of her official duties. The fiduciary theory of judging captures this requirement, although so can Dworkin's and Posner's theories.

    However, appreciating the sensitivity of the norms for judges affords another way to appreciate what goes wrong in Conspiring Judges. To the charge that she has violated the norms for judges, Judge Seagull might respond that she resolved the case before her in exactly the way that a norm-abiding judge would have. Regardless of whether the decision was correct, however, Judge Seagull's decision procedure was problematic because it was insensitive to the facts of the case, the content of the law, and the interests of the public. In other words, Judge Seagull would have decided the case in Khan's favor regardless of the legal merits of his position; that the legal merits supported her decision was a happy accident. If the circumstances had been only slightly different--if, for example, Judge Rivers had asked Judge Seagull to increase the charges against Khan as a favor to his contributor--then this decision procedure would have yielded the wrong answer. Living up to the norms for judges requires more than that a judge's decision have legal bases. In addition, the connection between these legal bases and the decision must be intentional.

    Both "law as integrity" and pragmatism can explain some of the ways in which the norms for judges are robust. In particular, both approaches can appreciate how the requirements incumbent on a judge morph based on changes in circumstances. (133) However, because these views are outcome centered, they cannot fully capture the updating requirement. In particular, they cannot easily condemn decisions made according to insensitive procedures that happen to succeed. Neither can they explain why the lucky success exhibited in Conspiring Judges is deficient. Fiduciary theory, on the other hand, can straightforwardly explain that an insensitive decision procedure is problematic because it exhibits neither the conscientiousness nor robustness that loyalty requires.

    Thus, fiduciary political theory seems to illuminate the domain of judging. As articulated by LPS, the fiduciary theory of judging captures important aspects of the norms for judges that prominent alternative theories cannot easily explain. This is not to say that the fiduciary theory fully describes the normative constraints on judges, or that no version of the alternative theories could account for the core of the norms for judges. (134) Rather, our claim here is that norms for judges are deliberation sensitive, impose standards of conscientiousness, and operate robustly. A theory of judging is incomplete if it neglects these features, and the fiduciary theory provides a straightforward way to both explain and justify them.

    1. A Fiduciary Theory of Administrative Governance

    A theory of administrative governance provides standards for determining how governance by administrative institutions can (or cannot) be politically legitimate. (135) Evan Criddle has offered the clearest interpretation of a fiduciary theory of administrative governance, as well as a fiduciary theory of administrative rulemaking (that is, how agencies should make rules to implement legislation). (136) According to Criddle, fiduciary norms arise in all circumstances where an entrustment by a beneficiary leads to "substitution" (whereby an agent stands in as a steward "with discretion over an aspect of' the principal's welfare (137) and "residual control" by the principal (who, "even after" entrustment, "reserve[s] the right to supervise fiduciary performance and, in appropriate circumstances, to take corrective action to remedy fiduciary malfeasance"). (138) These circumstances create the need for fiduciary duties, which provide standards for determining that the agent's "broad latitude to set discretionary policies ... do[es] not transgress reasonable limits." (139) More broadly, Criddle argues that, whenever substitutional entrustment arises, fiduciary norms are necessary to prevent the principal from being dominated by the agent. (140) For Criddle, whenever fiduciary norms apply, an agent is required to act both deliberately and deliberatively in order to advance the principal's interests. (141)

    Criddle contends that administrative governance exhibits each of the hallmarks of fiduciary norms. Because "the people as a whole" entrust authority to administrative institutions, these institutions "serve as stewards for the people." (142) Administrative agencies and public officials are therefore charged with advancing the interests of the people as a whole and are constrained by duties of loyalty and care that are owed to the populace. (143) On Criddle's logic, fiduciary norms apply to exercises of administrative rulemaking (144) and adjudication, (145) and more broadly to the structure of administrative institutions (146) and the role-based responsibilities of administrators. (147) The fiduciary theory thus supposes that administrative governance norms are geared toward a "culture of justification," in which "every exercise of power is expected to be justified" in terms of its advancement of the interests of the beneficiaries. (148)

    Not everyone would accept the claim that administrative-governance norms reflect or aspire to such a culture of justification. Public-choice approaches see administrators as self-regarding, in contrast with the other regarding orientation that the fiduciary theory presupposes. (149) Pragmatic approaches are skeptical about the possibility of theorizing administrative governance, contending instead that the "structure and design of government institutions" should be evaluated "by the extent to which they help to...

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