Document Type

Article

Publication Title

The Yale Law Journal

Volume

125

Publication Date

2016

Abstract

“Fiduciary political theory” is a burgeoning intellectual project that uses fiduciary principles to analyze public law. This Essay provides a framework for assessing 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 less likely to be viable.

One contribution of this Essay is to describe the underlying structure of fiduciary norms. We identify three features of these 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 “robust” demands, which require the fiduciary to seek out and respond appropriately to new information about the interests of her beneficiaries.

We use these insights to assess applications of fiduciary principles to theories of judging, administrative governance, and international law. A fiduciary theory of judging can explain certain aspects of the norms of judging better than alternative theories offered by Ronald Dworkin and Judge Richard Posner. The viability of a fiduciary theory of administrative governance is an open question. Whether this kind of fiduciary political theory is superior to alternatives (like the instrumentalist theory of administrative governance developed by Adrian Vermeule) turns on a deeper dispute about whether administrative law reflects a culture of justification. Finally, a fiduciary political theory of international law (like the one defended by Evan Fox-Decent and Evan Criddle) is 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.

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