The (unified?) fiduciary theory of judging: hedgehogs, foxes, and chameleons.

• Author: Segev, Joshua
• Position: Symposium: The Role of the Judge in the Anglo-American Tradition

1. INTRODUCTION

   There has been a resurgence of interest in constitutional theories about the role of the judge in the Anglo-American tradition in recent years. (1) Another recurrent theme in contemporary American constitutional writing is the construction of fiduciary theories of government to limit and guide public officials' discretion. (2) Hence, the emergence of a unified fiduciary theory of judging--able to account for the responsibilities judges possess and the nature of the judicial office itself--was almost inevitable. After several initial and immature attempts to develop the theory, mostly as an inspiring metaphor, (3) Ethan J. Leib, David L. Ponet, and Michael Serota have presented the most direct and well-developed judge-as-fiduciary model. According to their model, the judge is a fiduciary since he is empowered over the assets and legal interests of the public. (4)

   This article examines the judge-as-fiduciary model, and explores the ways it resolves disagreements about the role of the judge in the Anglo-American tradition. The judge-as-fiduciary model is rooted in private English and American law. "A fiduciary relationship emerges in contexts where one person (the fiduciary) has discretionary power over the assets or legal interests of another (the beneficiary)." (5) In these settings, private law traditionally imposes substantial duties (duty of loyalty, duty of care, and duties of candor, disclosure, and accounting) upon fiduciaries, incentivizing them to prioritize their beneficiaries' interests above their own. (6)

   Leib, Ponet, and Serota argue that their judge-as-fiduciary model "offers important insights into what it means to be a judge in [the Anglo-American tradition], while providing practical guidance in resolving a range of controversial constitutional... issues surrounding judicial [performance]...." (7) This article argues that, notwithstanding shedding light on some important features of judging in the Anglo-American tradition (i.e., discretion, public trust, and vulnerability), the judge-as-fiduciary model fails to provide a convincing unified theory of the judicial role, which puts into question its attractiveness in resolving current disagreements. The reasons for this failure lie in the reductionist nature of the judge-as-fiduciary model of Leib, Ponet, and Serota. Reducing the private fiduciary principle to a unified system of duties and goals provides a unified theory of the role of the judge in modern democracies.

   This article will revisit and enrich the private fiduciary principle by focusing on other characteristics of the principle. That goal is achieved by reviewing the methods by which fiduciary duties have been developed over time in the Anglo-American jurisprudence, the different kinds of fiduciaries acknowledged by courts (i.e. principle, trustee, guardian), and the plurality of justifications used to account for fiduciary duties and remedies. However, this "new" fiduciary principle will question the soundness of creating a unified constitutional theory of "the Anglo-American judge" as fiduciary. The article concludes with remarks about the constitutional theory's inability to break free from judicial tools and limitations: The fiduciary principle in private law is a judicial product, hence it is engraved by the same problems, controversies, and dilemmas that characterize the constitutional law debates regarding the judge's role.

   The discussion proceeds as follows: first, the article describes the judge-as-fiduciary model of Leib, Ponet, and Serota; second, it analyzes the goals and challenges of the fiduciary theory of judging; third, it revisits the private law fiduciary principle and sheds light on other features of the fiduciary principle; fourth, it construes a "new" and fuller judge-as-fiduciary model based on the preceding discussion, which will help explain its problems and limitations in resolving contemporary disagreements about the role of the judge in the Anglo-American tradition; finally, the article concludes with two insights regarding the whole attempt to construe a fiduciary theory of judging.

2. THE JUDGE-AS-FIDUCIARY MODEL

   The judge-as-fiduciary model is rooted in the private law doctrine of fiduciary duties. A fiduciary relationship emerges in circumstances where one person (the fiduciary) has discretionary power over the assets or legal interests of another (the beneficiary). (8) Classic fiduciary relationships in private law include attorney-client, trustee-beneficiary, agent-principle, corporate officeholder-shareholder, and doctor-patient relationships. (9) In these and other sufficiently similar conditions, the beneficiary must repose his trust in the fiduciary despite (or maybe because of) his vulnerability and inability to protect himself properly from the fiduciary's self-dealing actions. (10) Anglo-American private law traditionally imposes substantial duties upon fiduciaries in order to incentivize them to prioritize their beneficiaries' interests above their own. (11)

   Leib, Ponet, and Serota indicate three key features of the fiduciary relationship: discretion, trust, and vulnerability. (12) Discretion and vulnerability are, they explain, "flip sides of the same coin." (13) The power and discretion vested in the fiduciary create both the beneficiary's vulnerability and the fiduciary's potentiality for abuse of power and discretion. (14) In addition, fiduciary relationships are founded on a substantial degree of trust and confidence. (15) Under these circumstances, trust and fiduciary duties economize monitoring costs. (16) The high costs of monitoring are often due to a fiduciary's expertise vis-a-vis their beneficiary, which makes it difficult for beneficiaries to monitor their fiduciaries. (17) Additionally, the fiduciary's performance cannot always be measured objectively in real time. (18) Constant supervision by the beneficiary over the fiduciary's actions would harm the relationship, which functions best when the fiduciary and beneficiary bond well. (19) "As a result, beneficiaries must ultimately depend on fiduciaries to undertake their responsibilities in good faith and to [refrain] from exploiting them for personal gain." (20)

   After surveying the private fiduciary principle, Leib, Ponet, and Serota turn to the fiduciary principle in public law. The idea that the government holds powers and assets in trust for its citizenry dates back to scholars of ancient Greece and the Roman Empire: Plato, Aristotle, and Cicero. (21) The idea of a fiduciary government, and conceiving public officials as holders of public trust, is rooted in the old English common law and ultimately found its way to the British colonies in America. (22) American constitutional law, Leib, Ponet, and Serota argue, was founded on this English and colonial heritage. (23) The founding generation conceptualized the relationship between government and the governed as a fiduciary one, and the Constitution was designed as "the fiduciary law of public power." (24) Accordingly, the Constitution mimics the private fiduciary principle by incentivizing public officials to prioritize the citizen-beneficiaries' interest above their own. (25)

   Leib, Ponet, and Serota identify an important development of the fiduciary conceptualization of constitutional law--exemplified in congressional legislation, the jurisprudence of American courts, and scholarly writings--that American courts can invalidate some laws and government actions that violate public trust in order to reinforce fiduciary obligations of political actors. (26) Leib, Ponet, and Serota argue that the relationship between public officers and citizens "generally reflects the three indicia of private fiduciary relationships." (27) This is because governmental officials have wide discretion when making decisions that affect the interests and resources of the public, leaving citizens vulnerable to the potential abuse of public power while requiring they trust those who govern them. (28)

   Moreover, according to Leib, Ponet, and Serota, the public fiduciary principle offers a useful addition to the conventional account of government by consent, upon which the democratic state is based. (29) The problem with consent theory is that citizens "rarely meaningfully consent to the state's authority." (30) However, under the fiduciary account, the state's legitimacy is based not on the explicit or implied consent of the governed, but rather on "a de facto relationship of discretion, trust, and vulnerability [which] ultimately grounds the range of fiduciary obligations and the attendant political rights of the citizen-beneficiaries." (31)

   Leib, Ponet, and Serota acknowledge the differences between private and public fiduciaries: private fiduciaries often make decisions affecting the interest and assets of small and identifiable groups of beneficiaries, while public fiduciaries render general decisions for large classes of citizens whose interests may conflict. (32) However, the problem of multiple beneficiaries with conflicting interests arises in private fiduciary law, too, for example, shareholders in a corporation whose interest may collide. In this and other similar situations, fiduciaries are required to act evenhandedly and reasonably towards all beneficiaries. (33)

   After surveying private fiduciary law, translating it, and applying it to the public law domain, Leib, Ponet, and Serota proceed to argue that judges qualify as fiduciaries since they exhibit the three indicia marks. (34) First, judges maintain wide discretionary powers governing, deciding, and influencing the assets, rights, and interests of others. (35) This discretionary authority is strengthened by judicial independence, which is based on institutional arrangements and cultural norms. (36) Judges at both the state and federal level are vested with the authority to say what the law is and to apply it to the facts of the dispute before the court. (37)...