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Fiduciary political theory: a critique.



A. Limiting the Expansion of Fiduciary Norms
   B. The Structure of Fiduciary Norms
      1. Deliberation
      2. Conscientiousness
      3. Robustness

    A. A Fiduciary Theory of Judging
       1. Are the Norms for Judges Deliberation Sensitive?
       2. Do the Norms for Judges Impose Standards of
       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?



"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.


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.

A. 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.

B. 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 demanding (Section I.B.3). The requirements they impose morph based on changes to the world and to the beneficiary's circumstances. One implication of the robustness of fiduciary norms is that they impose an "updating" requirement: a fiduciary must be disposed to monitor changes to the world relevant to promoting a beneficiary's interests or ends and also be disposed to revise her efforts in light of these changes.

Although some of these features characterize other types of legal norms, fiduciary norms are unique in being simultaneously characterized by all three.

In the remainder of this Section, we explain each of these features and their implications. To demonstrate why the coincidence of these features is distinctive to fiduciary norms, we provide comparisons to other types of legal norms, particularly the norms of contract, tort, and criminal law.

1. Deliberation

Norms typically govern behavior. (29) However, some norms are deliberation sensitive (30)--that is, they can "bear[] upon what goes on inside people's heads" by "demand[ing] that we have or form certain attitudes and that we think or deliberate in certain ways." (31) When a norm is deliberation sensitive, whether someone lives up to it depends on whether she forms the attitudes, thinks, or deliberates in the ways that the norm requires. (32)

Several scholars have noticed that fiduciary norms are deliberation sensitive. (33) For example, according to the "shaping account" of fiduciary loyalty that we have articulated in previous work, a fiduciary acts loyally only if she attributes nonderivative significance to the interests of her beneficiary. (34) A fiduciary whose deliberation is not shaped by the beneficiary's interests does not live up to the duty of loyalty, regardless of how she otherwise behaves. (35) Likewise, what Paul Miller calls the "principle of prudence" construes the fiduciary duty of care as deliberation sensitive. (36) According to Miller, this principle "requires that the fiduciary show due care when acting as fiduciary ... in pursuing the objects which ground her authority," which in turn imposes deliberative and attitudinal ideals that vary across fiduciary contexts. (37) In Miller's argument the fiduciary duty of care is equivalent to a duty to be careful; in failing to be careful, a fiduciary fails to live up to the norm. (38)

Other types of legal norms are not deliberation sensitive in the ways that fiduciary norms are. For example, tort-law norms are, in general, deliberation insensitive: violation of a tort-law duty of care is triggered by an action, and (for the purposes of tort law) an act is an "external manifestation of an actor's will." (39) Likewise, default contractual norms are generally deliberation insensitive: usually, whether one lives up to her contractual obligations is a matter of how she behaves. (40)

Criminal-law norms, by contrast, are usually sensitive to deliberation in the form of mens rea. How an individual deliberates determines, in part, whether she is subject to criminal liability. However, the deliberation sensitivity of criminal norms differs from that of fiduciary norms. In judging whether someone has lived up to a criminal norm, behavior is a threshold issue. An agent's deliberation is relevant only insofar as her behavior does not conform to that prescribed by the norm; deliberation is not relevant independently of behavior. (41) The same conclusion does not apply to fiduciary norms, where deliberation is a freestanding requirement.

To illustrate the special deliberation sensitivity of fiduciary norms, consider a modified version of an example developed by Ken Simons (42):

Operation: A medical procedure involves cutting a tendon. This procedure is highly risky: there is a thirty percent chance of injury to the patient even if the procedure is performed correctly, and a far higher chance of injury when the procedure is performed incorrectly. Danielle Doctor is a physician who has badly botched every such procedure that she has performed to date. Unaware of Danielle's history of failure, Paul Patient asks Danielle to perform the procedure on him, and Danielle agrees. During the procedure, Danielle, by luck, guesses the correct tendon to cut and thus performs the procedure in exactly the way that a competent physician would. However, Paul is among the unlucky thirty percent of patients who sustain injury when the procedure is performed correctly.

The Operation case illustrates the deliberative aspects of criminal and fiduciary norms, regardless of whether either type of norm actually applies to physicians like Danielle in this (or any) legal system.

Simons contends that Danielle would not be subject to criminal liability in Operation. General incompetence like Danielle's does not violate criminal norms, because a "free-floating incapacity or incompetence is never relevant to criminal liability." (43) To the extent that a physician is ever criminally liable for negligence, "it is not [her] general incompetence that justifies punishment," so much as the "highly deficient skill revealed in [a] particular operation." (44) Because, as a matter of luck, Danielle's performance in this operation did not manifest her lack of skill, criminal liability "would be unwarranted." (45)

Simons's comments suggest that criminal norms adopt what we will call a manifestation requirement: mental states (e.g., how an agent deliberates, what she intends, what she disregards) and their absence matter to criminal liability only insofar as they are connected with an agent's behavior. As Gideon Yaffe puts it, "mens rea is essential" to judgments of liability for violating criminal norms, "but it isn't relevant unless it's manifested" in behavior. (46) This requirement explains the criminal-law nostrum that punishment should be for acts, rather than for status: to punish in the absence of an action is to punish an agent for her presumed mental state, even though it has not caused her to behave in any particular way. It also explains the general disdain for so-called "thought crimes," since these crimes punish for mental states that have not been manifested in an agent's behavior. (47)

The Operation case illustrates that fiduciary norms are sensitive to deliberation in a different way than criminal norms are. If fiduciary norms applied to Danielle, then she would have failed to live up to them because her faulty pattern of deliberation is an instance of both carelessness and disloyalty. Fiduciary norms therefore reject the manifestation requirement. Disloyalty or carelessness can constitute a violation of these norms, regardless of whether or how these mental states are revealed in behavior. (48)

Consider an alternative version of the Operation scenario in which Paul does not suffer any injury from the procedure. Since fiduciary norms reject the manifestation requirement, it follows that Danielle would violate her fiduciary duties in this alternative scenario. (49) Because of the way that fiduciary norms are sensitive to deliberation, someone can violate these norms solely through a faulty pattern of deliberation, regardless of whether this deliberation manifests in behavior.

Our analysis so far has concerned negligence, or the failure to appreciate a substantial and unjustifiable risk of which one should have been aware. However, our conclusions seem even stronger when applied to more involved mental states, like the mens rea of purpose that forms the core of attempt liability. There is no such thing as tort or contract liability for attempt. In general, failed attempts to harm someone do not violate tort norms. Likewise, someone who tries his best to breach a contract but winds up performing anyway does not necessarily violate contractual norms.

Criminal norms, of course, prohibit attempts. Someone who tries but fails to assault another person commits a crime--namely, the crime of attempt, rather than the crime of assault. Fiduciary norms seem to prohibit attempts as well. A fiduciary who tries to betray her principal has been disloyal, regardless of whether these efforts succeed. (50) Thus, both criminal and fiduciary norms regarding attempts are deliberation sensitive. Here, too, there are differences in how deliberation matters, as demonstrated by the following scenario:

Wicked Operation: Assume the same medical procedure and protagonists as in Operation. Paul Patient asks Danielle Doctor to perform the operation on him. Danielle determines that she dislikes Paul, and she forms a plan to cut the wrong tendon during the operation, which will cause Paul excruciating pain. To remind herself of this plan (which she is likely to forget given her busy schedule), Danielle writes "Cut tendon to injure Paul during operation" into her notebook, and affixes her personal seal to the page. Danielle's policy is to be fully committed to carrying out any plan to which she affixes her seal.

Has Danielle attempted to harm Paul in Wicked Operation? If traditional criminal norms applied in this case, then Danielle would almost certainly not have violated them at the point where the scenario cuts off. In general, criminal norms prohibiting attempts require not only that the defendant have the purpose to commit an object crime, but also that she take some action toward the commission of that crime. (51) Danielle's plan to injure Paul during the procedure would satisfy the mental-state requirement for attempt. Her behavior, however, would not satisfy any existing formulation of the act requirement for attempt. In the language of criminal law, writing the plan in the notebook and affixing the seal would likely be considered "mere preparation," rather than behavior constituting a substantial step toward the result of injuring Paul. (52) One explanation for this conclusion is that criminal norms embrace the manifestation requirement: Danielle has not attempted to injure Paul because her plan has not yet been manifest in her behavior. (53) Merely planning to harm someone is not equivalent to trying to harm him.

Fiduciary norms do not support the same conclusion. Regardless of whether she has attempted to harm Paul, Danielle has violated a fiduciary obligation to him. More generally, evidence that you have "merely" planned to betray someone is sufficient to establish that you are disloyal toward her. It does not matter whether your intention is ever manifest in behavior leading toward a result. Intuitively, then, having a firm plan to harm someone who has trusted you is not merely an attempted betrayal; it is a betrayal. Beyond these intuitions, the rejection of the manifestation requirement coheres with several structural features of fiduciary norms. For example, because of the so-called "prophylactic" nature of fiduciary rules against conflicts of interest, a conflict of interest violates the fiduciary's duty regardless of whether it has any causal effect on the actions that the fiduciary takes on behalf of the beneficiary. (54)

Therefore, fiduciary norms (like criminal norms, but unlike norms of contract and tort) are deliberation sensitive. They impose demands on both behavior and deliberation. Unlike criminal norms, however, fiduciary norms reject the manifestation requirement. Specific patterns of deliberation can violate fiduciary norms regardless of how (or whether) they are connected with behavior.

2. Conscientiousness

Norms have conditions of success. We use the term "compliance" to describe success in living up to a norm and "breach" or "violation" to describe failure to live up to a norm. (55) There are several possible modes of complying with a norm. Two modes that are most relevant to our discussion are "following" and "conforming." (56) Someone follows a norm when she not only behaves or deliberates as the norm requires, but also justifies these actions by the fact that the norm requires these behaviors or deliberations. (57) Someone conforms to a norm when she behaves or deliberates as the norm requires, "not because of the norm, but because of other considerations associated with the norm." (58) Following a norm is more demanding, since it imposes second-order standards regarding how the norm figures into one's practical deliberation. Because following is so demanding, some commentators see conformity as the default mode of complying with a norm. (59)

Different norms impose different standards for compliance. For certain types of norms, following is irrational or self-defeating, so conformity is the best (and perhaps only) way to comply. (60) For other types of norms, following is the requisite mode of compliance. (61) An agent would violate this type of norm if her behavior and/or deliberation matched the requirements of the norm, but she lacked the requisite practical orientation toward the norm. Still other types of norms are agnostic about compliance: conforming works just as well as following, and any route to compliance is just as successful as any other route.

Fiduciary norms impose standards of compliance. Complying with the fiduciary duty of loyalty requires a special conscientiousness regarding the interests or ends of the beneficiary. Patterns of behavior or deliberation that lack this conscientiousness breach fiduciary norms. (62) Thus, not just any token of conformity counts as complying with a fiduciary norm. There are many possible ways to describe the conscientiousness that fiduciary norms require. In previous works, we argued that it is impossible to act loyally by accident. If an agent's behavior and/or deliberation happen to match the pattern specified by a fiduciary norm, but the interests or ends of the principal do not influence the agent's practical deliberation in the right way, then the agent has not complied with the fiduciary norm. (63) Paul Miller contends that all fiduciary norms contain a "principle of fidelity," according to which an agent must "manifest [a] commitment to the fate of the purpose or person to the extent that same is within the control of the fiduciary in the exercise of her powers." (64) By implication, to behave or deliberate in a way that does not manifest this commitment (or to lack the commitment altogether) is to breach the fiduciary norm. In the legal domain, the conscientiousness necessary to live up to a fiduciary duty is sometimes termed a requirement of "good faith." (65) Each of these formulations suggests that fiduciary norms are not agnostic about compliance: certain ways of conforming to fiduciary duties do not count as living up to fiduciary norms. (66)

By contrast, the other types of norms that we have considered so far do not impose standards of conscientiousness. For these norms, all modes of conforming are equally successful. Suppose that criminal norms prevent a particular course of action (Y-ing), but do not prohibit another course of action (X-ing). However, Adam thinks that X-ing is prohibited by criminal norms, and he forms and executes an elaborate plan to X. (Suppose also that Adam is disposed to break the law: if he knew that only Y-ing is criminally prohibited, he would Y.) According to the notion of "pure" legal impossibility, Adam does not breach any criminal norm by X-ing, even though he believes that he does. (67) Adam is an accidental compiler with criminal norms because his behavior happens to conform to the law. Yet this happenstance is sufficient for Adam to live up to the criminal norm.

Given these standards of conscientiousness, fiduciary norms are subject to what some philosophers call the "wrong kinds of reasons" problem. (68) This problem arises, among other places, in discussions of "fitting attitudes" accounts of value, which define value as that which we have reason to value. Some reasons to value an object have nothing to do with the object's value. These are not good reasons to value an object. (69) The same basic argument applies to a variety of attitudes and beliefs. That someone is generous is the right kind of reason to admire her; that her benefactor will pay me to admire her is the wrong kind of reason. (70)

Mark Schroeder has argued that the "wrong kinds of reason" problem applies to any activity that is subject to standards of correctness. (71) For Schroeder, these standards of correctness give rise to sets of reasons that are shared by all participants in the activity. Only the reasons within this set are the right kinds of reasons. Some (otherwise licit) considerations, however, might motivate performance of an action, despite being outside this shared set of reasons for the activity. Despite their motivational efficacy, these are nonetheless the wrong kinds of reasons. (72)

Fiduciary norms are (by Schroeder's logic) vulnerable to the "wrong lands of reasons" problem. Illicit or inconsiderate reasons might move a fiduciary to behave or deliberate in the way that fiduciary norms call for. Even so, these patterns of behavior or deliberation would be inappropriate because they would be outside the set of reasons that characterize fiduciary norms. For example, suppose that a fiduciary and a beneficiary were both members of a highly demanding religion, one that requires complete devotion to the faith. (73) As a result of their common membership, the fiduciary might think about and act in a way that happens to advance the beneficiary's interests or ends. If complying with a fiduciary norm required only that a fiduciary think about and advance his beneficiary's interests or ends, then the co-religionist would live up to fiduciary norms. Yet, by definition, the co-religionist fiduciary is not loyal to the beneficiary. Rather, he is loyal to the religion, and in exhibiting this loyalty he happens to advance the interests or ends of the beneficiary. "That the beneficiary is a member of my religion" is certainly a licit reason for action, and it might be a powerful reason for action. Nevertheless, it is the wrong kind of reason for a fiduciary to be loyal to the beneficiary, at least as far as fiduciary norms are concerned.

Contract, tort, and criminal norms do not require conscientiousness, nor do they invite the "wrong kinds of reasons" problem. Someone who refrains from killing another person for morally inappropriate reasons (e.g., solely because he does not want to risk the chance of imprisonment) has complied with the criminal norm against homicide. Someone who fulfills his end of an agreement solely out of concern for his commercial reputation has lived up to the contractual norm regarding performance. Someone who does not injure another simply because it would not be fun has not violated any norm of tort.

In sum, fiduciary norms have standards of conscientiousness, while contract, tort, and criminal norms do not. Because of these standards, fiduciary norms invite "wrong kinds of reason" problems.

3. Robustness

Fiduciary norms also involve a species of what Pettit calls "robustly demanding" values. (74) According to Pettit, someone can enjoy a robustly demanding value "only insofar as [he] enjoy[s] a corresponding, intuitively thinner benefit ... not just actually, but across a certain range of possibilities, where the extent of that range determines the degree of robustness with which [he] enjoy[s] it." (75) For example, Pettit sees friendship as a robustly demanding value. In order to be someone's friend, you must favor her "reliably or robustly, and not just as a contingent matter: not just as luck or chance or a spasm of good will would have it." (76) Someone who is there for you in good times but would not be there for you in bad times is not your friend. This conclusion holds even if times never go bad.

The demands imposed by fiduciary norms are robust in all of these ways. Consider the paradigmatic fiduciary duty of loyalty. Whether an agent is loyal depends not only on how she acts to advance a principal's interests or ends, but also on her disposition to act in circumstances where those interests or ends change. Part of the robustness of loyalty concerns how the beneficiary's interests or ends must matter to the fiduciary. Loyalty inevitably has a counterfactual element: "regardless of what the beneficiary's interests happen to be, if these interests were different, then the loyal fiduciary's deliberative situation would be different as well." (77) If a fiduciary is disposed not to revise her deliberation in accordance with changes in the beneficiary's interests or ends, then she is not loyal to the beneficiary.

The robustness of the demands on fiduciaries distinguishes these types of norms from norms of contract and tort. For example, because harm is an element of tort liability, an agent (T) does not necessarily violate a norm of tort law in circumstances where Ts conduct does not harm a victim (V), but would have harmed V under alternative facts that (unbeknownst to T) do not apply. In other words, as discussed above, tort norms do not usually assign liability for what in criminal law are called impossible attempts. (78) Likewise, suppose that A and B have a contract regarding doing X. A will not violate any contractual norm if she does X but would not have done Y had the contract concerned Y-ing.

These conclusions are not true for fiduciary norms. Impossible attempts violate fiduciary norms. T would breach a fiduciary duty if he took an action whose purpose is to harm V, even if that action did not actually harm V. Likewise, A would breach fiduciary norms if she does X, but, in alternative circumstances in which doing Y was in B's best interest, she would be committed not to do Y. Because fiduciary norms reject the manifestation requirement, how a fiduciary is disposed to behave or deliberate in nonactualized circumstances affects whether she lives up to her fiduciary duties.

A more concrete illustration of the robust character of fiduciary norms can be derived from Henry Richardson's discussion of the responsibilities of medical researchers. (79) By way of background, malaria and schistosomiasis are both parasitic diseases that are endemic in certain parts of Africa. (80) Richardson notes that medical researchers working in these areas "will often confirm malaria diagnoses by checking fluid samples under the microscope. When they do so, they are likely to see, and so to diagnose infection by, the schistosomiasis parasite as well." (81) Further, "in many of the areas where such research is carried out, if the participants do not receive this medical care from the researchers, they will not receive it at all." (82) Consider the following example:

Case 1: As part of a public-health effort to combat malaria, Richard Researcher diagnoses and treats malaria in Preston Patient. Prior to receiving medical treatment, Preston signs a consent agreement that both waives his privacy rights and contains the following provision: "This study is only to diagnose and treat malaria." During the study, Richard diagnoses Preston with schistosomiasis but does not convey this information to Preston or treat the disease.

The discovery of schistosomiasis in this example is what bioethicists call an "incidental finding," or a "finding concerning an individual research participant that has potential health or reproductive importance and is discovered in the course of conducting research but is beyond the aims of the study." (83) Does Richard have a responsibility to convey these incidental findings to Preston, or to provide him with what Richardson calls "ancillary care" (that is, "medical care that ... research subjects need but that is not required to make a study scientifically valid, to ensure a study's safety, or to redress research injuries")? (84)

Suppose that tort, contract, and fiduciary norms all apply to Richard in Case i. It is unclear whether Richard's actions would violate extant tort norms. The answer to this question depends on contingent facts about whether conveying incidental findings and providing ancillary care are part of the relevant standard of care, which in turn depends on how other medical researchers would have behaved in these circumstances. (85) Likewise, Richard's actions in Case 1 would probably not breach generally applicable norms of contract, since the disclaimer in the consent agreement is likely sufficient to relieve Richard of any responsibility for diagnosing or treating Preston's schistosomiasis.

In contrast, Richard's conduct would violate fiduciary norms. Richardson concludes that medical researchers have a general duty to warn and to treat in circumstances like Case 1, and his argument for that conclusion closely resembles an application of fiduciary principles. For Richardson, the medical researcher's ancillary-care duties arise from the subject's waiver of privacy rights. The volitional exercise involved in this waiver creates what Richardson calls a "moral entanglement," whereby "special obligations unintendedly arise in a way that is ancillary to some other moral transaction." (86) However, the waiver does not fully explain the duties that attach to this relationship. According to Richardson, "The initial, mutually voluntary establishment of a privacy waiver--often a one-sided one--sets up a basic voluntary assumption of responsibility, one that potentially makes certain vulnerabilities of the offeror of special moral concern to the accepter." (87) This special moral concern, in turn, creates special responsibilities for a researcher (and for moral agents generally):
   Once one has warned the other about a new problem that one
   discovers on the basis of private information (or has otherwise
   broached the issue), the morally best way to address these
   underlying concerns becomes not to duck out, but rather to help the
   other address the problem--assuming the other wants help. In this
   way, the duty to warn (or its cognates) further deepens the
   incipient relationship begun by the initial intimacy, providing a
   clear locus for a special obligation of beneficence. (88)

In contrast with norms of promise and contract, under which someone's obligations are "largely under the control of [her] will[]," entanglements like those involved in Case 1 "can extend our obligations in ways that we do not intend or foresee" because the researcher's responsibilities to the subject "morph when one has warned the other about a danger discovered on the basis of private information." (89)

Fiduciary responsibilities have exactly the "morphing" quality that Richardson attributes to entanglement-based responsibilities. Indeed, many commentators identify something like this "morphing" quality in describing fiduciary duties as "open-ended." (90) A fiduciary violates her responsibilities when, in light of changed circumstances, she fails to alter her behavior or deliberation in the way that is required to fulfill her mandate. (91) In Case 1, then, fiduciary norms would impose responsibilities to convey incidental findings and provide ancillary care beyond those contemplated in the initial agreement. By contrast, responsibilities arising under contract and tort do not necessarily "morph" in this way.

The following example suggests another way that fiduciary norms are robustly demanding:

Case 2: As part of the same public-health effort in Case 1, Rhonda Researcher diagnoses and treats malaria in Pauline Patient. Rhonda could easily determine whether Pauline is infected with schistosomiasis; however, doing so would trigger ancillary-care responsibilities that Rhonda does not want to undertake. Therefore, Rhonda does not investigate whether Pauline's sample is infected with schistosomiasis, nor does she provide treatment for this disease.

We think that norms of tort and contract reach the same conclusions in Case 2 as in Case 1. Because these types of norms do not (or, in the case of tort norms, do not necessarily) impose ancillary-care responsibilities, they do not necessarily impose any duty to seek out incidental findings or to investigate whether ancillary care is needed.

But if fiduciary norms applied, then Rhonda's actions in Case 2 would likely violate them. The best explanation for this conclusion is that fiduciary norms not only impose responsibilities that "morph" but also (in light of these responsibilities) impose responsibilities to determine whether some morphing of responsibilities is called for in order to further the beneficiary's interests or ends. We call this further responsibility an updating requirement. As part of this requirement, fiduciary norms demand that the fiduciary investigate changes in the beneficiary's interest or ends. They also demand sensitivity to the results of the investigation: the fiduciary must be committed to revising her efforts on behalf of the beneficiary in light of changes to the beneficiary's interests or ends. A failure to update in either of these respects (through, for example, a failure to investigate or an unwillingness to revise) is sufficient to violate fiduciary norms.

Our statement of the updating requirement so far has been abstract. The requirement is likely to be instantiated differently in different fiduciary contexts. For example, an attorney owes fiduciary duties to her client, part of which includes the duty to investigate matters that might advance the client's legal interests. Although the rules regarding this duty are complex, at least some failures to investigate matters that would advance the client's interests are violations of the lawyer's fiduciary duty. (92) Moreover, although the contours of the investigative duty differ depending on the context, the sensitivity requirement presumably does not. The fiduciary duty of loyalty would be breached if a fiduciary "adopt[ed] a[n] '[I] don't care about the risks' attitude" concerning a decision regarding the interests or ends of the beneficiary. (93) A lawyer's insensitivity to the fruits of investigation thus violates fiduciary norms because it amounts to an "I don't care about the risks" approach to lawyering.

The application of this updating requirement further distinguishes fiduciary norms from other types of legal norms. Criminal norms impose no updating requirements: in order to comply with criminal law, one must only abide by the criminal norms that exist, rather than the ones that might exist. No citizen has a duty to investigate which criminal prohibitions would best serve the public interest or a duty to abide by criminal prohibitions that have not been formally enacted. Indeed, imposing such an updating requirement for criminal norms would be inconsistent with basic values of legality. (94) Nor do contractual norms impose default updating requirements. Once an agreement is made, a party has no automatic duty to monitor changes to the counterparty's interests or to unilaterally revise the terms of the agreement if doing so would advance the counterparty's interests. (95)

Thus, fiduciary norms impose robust demands on agents. Unlike other types of legal norms, the requirements imposed by fiduciary norms necessarily "morph." Among the demands unique to fiduciary norms is an updating requirement: the fiduciary must not only monitor changes in the beneficiary's interests or ends but also modify her actions on behalf of the beneficiary as a result of these investigations.


To summarize the analysis set forth above, here is our framework for determining when fiduciary political theory is likely to work: because fiduciary norms are deliberation sensitive, have standards of conscientiousness, and impose robust demands, fiduciary political theory will only be capable of illuminating domains of public law where these features are at home. We use this framework to show how some efforts at fiduciary political theory illuminate, others appear to be incomplete, and still others are subject to criticism.

Toward this end, we consider three examples of fiduciary political theory: a fiduciary theory of judging advanced by Ethan Leib, David Ponet, and Michael Serota (Section II.A); a fiduciary theory of administrative governance articulated by Evan Criddle (Section II.B); and a fiduciary theory of international law defended by Criddle and Evan Fox-Decent (Section II.C). We mean these discussions to be case studies, rather than definitive engagements. Thus, we consider only the versions of these theories advanced by their authors, rather than all existing or possible versions. Our primary goal is neither to vindicate nor to condemn the substance of these particular theories. (96) Rather, we aim to demonstrate whether any fiduciary theory is likely to be fruitful in these domains of public law.

To preview our conclusions, fiduciary theories of judging are capable of explaining important aspects of the judicial role that prominent alternative theories (like those advanced by Ronald Dworkin and Richard Posner) cannot easily explain. Fiduciary theories of administrative governance are intriguing, but they rest on premises that are largely undefended and would almost certainly be denied by those (e.g., consequentialists and pragmatists like Adrian Vermeule) who are most likely to reject fiduciary political theorizing. Finally, the domain of international law seems to us incompatible with several features of fiduciary norms. This incompatibility calls into question the viability of fiduciary political theory about international law, at least as that domain of law currently exists.

A. A Fiduciary Theory of Judging

A theory of judging establishes how "judges [should] decide the controversies that are presented to them." (97) The fiduciary theory of judging advanced by Leib, Ponet, and Serota (LPS) contends that every judge has fiduciary obligations to the people who are bound by the law that the judge interprets and applies. (98) LPS construe fiduciary norms as applying to any context in which "one person ... has discretionary power over the assets or legal interests of another," such that the legal interests of the latter are vulnerable to the discretionary decisions of the former. (99) According to LPS, each of the indicia of fiduciary norms is realized in the judicial role: judges maintain wide discretionary authority over those who are subject to the law, (100) judges are entrusted by those who are subject to the law with the authority to interpret it, (101) and "the delegation to judges of substantial legal authority to apply or interpret the law leaves citizens vulnerable." (102) Therefore, LPS contend, fiduciary norms apply to judges. (103) As such, judges owe "the people"--their putative beneficiary class--a duty of loyalty (a responsibility to be impartial toward the litigants in resolving a case, (104) a duty of care (which requires the exercise of competence in saying what the law is and providing reasons for decisions, (105) and a separate duty of candor (which "instructs that judges should say what they mean"). (106) Consistent with the fiduciary theory of judging, the basic norms for judges impose each of these duties. (107)

From this brief sketch, it is possible to contrast fiduciary theories of judging with two prominent alternatives. (108) An interpretivist theory like Ronald Dworkin's "law as integrity" view grounds the judge's role-based responsibilities on free-floating commitments to certain ideals. (109) In Dworkin's view, a judge should resolve cases based on morally weighty principles that fit (or explain) a sufficient number of existing legal materials. Dworkin's theory of law holds that there is a right answer to hard legal questions, (110) and "law as integrity" is an adjudicative methodology that allows the judge to reach this right answer. (111) Dworkin concedes that his view is consequentialist in the sense that "each interpretive legal argument is aimed to secure a state of affairs that is superior, according to principles embedded in our practice, to alternatives." (112) The "law as integrity" view is thus, in Lawrence Solum's phrase, "out comecentered" whether a judge has acted with integrity is determined by whether she reaches the correct resolution of the case before her. (113)

Another prominent theory of judging is the pragmatic theory of adjudication defended by, among others, Richard Posner. For Posner, legal pragmatism is, roughly, "a heightened concern with consequences or ... 'a disposition to ground policy judgments on facts and consequences rather than on conceptualisms and generalities.'" (114) Posner contends that a judge should engage in pragmatic adjudication by "always tr[ying] to do the best he can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past." (115) Pragmatic adjudication is outcome-centered in the same way that "law as integrity" is. Posner envisions a two-step process of judicial interpretation in which the judge first "infer[s] a purpose from the language and context" of the legal text or body of law, then "decide[s] what outcome in the case at hand would serve that purpose best." (116) For Posner, the outcome is what matters fundamentally; the judge's reasoning is relevant only insofar as it is a reliable or useful guide to securing the best outcome. (117) There is, Posner says, "no intrinsic or fundamental difference between how a judge approaches a legal problem and how a businessman approaches a problem of production or marketing." (118)

The fiduciary theory seems better suited than these alternatives to explain the features of the norms for judges (including duties regarding loyalty, care, and candor) that LPS identify. However, assume for the sake of argument that both "law as integrity" and pragmatic adjudication could explain these basic tenets. (119) In what follows, we argue that the norms for judges have each of the structural characteristics of fiduciary norms: they are deliberation sensitive (Section II.A.i), they impose standards of conscientiousness (Section II.A.2), and they apply robustly (Section II.A.3). Each of these features is widely recognized as an aspect of the norms for judges. Indeed, these features are perhaps so obvious as to be taken for granted. It would be difficult to imagine a judiciary worth having in which the norms for judges lacked any of these features. While outcome-centered alternatives (like those proposed by Dworkin and Posner) cannot easily accommodate these features, the fiduciary theory of judging can.

1. Are the Norms for Judges Deliberation Sensitive?

Yes. The norms for judges directly impose requirements on how judges deliberate. For example, Rule 2.2 of the American Bar Association's Model Code of Judicial Conduct stipulates that a judge must "uphold and apply the law" and "perform all duties of judicial office fairly and impartially." (120) Impartiality, in turn, requires the judge to be "objective and open-minded." (121) A judge whose deliberation failed to be objective or who was not open-minded would violate this norm, regardless of how she resolved the cases before her. Moreover, a judge can breach the norms for judges by failing to live up to her deliberative responsibilities, regardless of whether this failure is manifest in her behavior. Existing statements of the norms for judges, particularly the prophylactic nature of the rules regarding conflicts of interest and prohibitions on ex parte contacts, (122) reflect this possibility. It is also demonstrated by the following scenario:

Conspiring Judges (123): Donor makes a $1,000 campaign contribution to Judge Rivers. Judge Rivers tells Donor, "You run into a problem with any of your people, you get a hold of me. Anything you need."

Khan is a defendant in a firearm possession case before Judge Seagull. Donor tells Judge Rivers that Khan is one of her people and asks for his help.

Judge Rivers calls Judge Seagull and tells her that Khan is one of his friends. Judge Rivers asks Judge Seagull to "help" Khan, to which Judge Seagull replies, "Okay." When Khan appears in Judge Seagull's court several months later, she reduces the charges against him to a misdemeanor. Judge Seagull never takes anything from Judge Rivers.

We think that Judge Seagull violates a fiduciary norm in Conspiring Judges. This conclusion holds even if the decision to reduce the charges against Khan is socially optimal or consistent with existing legal materials. Likewise, Judge Seagull's actions violate the norms for judges even if she would have reduced the charges without Judge Rivers's exhortation, or if she never actually enters the order reducing the charges against Khan. Judge Seagull's agreement with Judge Rivers is, at the very least, a violation of the deliberative norm requiring objectiveness and open-mindedness. These conclusions do not depend on how or whether Judge Seagull's commitments are manifest in her behavior. Thus, the norms for judges appear to be sensitive to deliberation in the same way as fiduciary norms.

By contrast, neither Dworkin's "law as integrity" view nor Posner's pragmatic adjudication view can explain these results. On both theories, if the outcome of Judge Seagull's decision is correct (that is, if it is the morally best interpretation of the extant legal materials or tends to produce socially optimal results), then she lives up to the norms for judges. In other words, both theories would attribute only derivative relevance to Judge Seagull's deliberation: her deliberative process would matter only if she had not reached the correct decision. (124) The problem with these alternative theories, then, is their outcome centrism. The norms for judges clearly impose requirements regarding outcomes. Conspiring Judges illustrates that these norms also impose freestanding deliberative requirements. Among the three theories of judging considered here, only the fiduciary theory captures this nuance.
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Title Annotation:Introduction 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
Author:Leib, Ethan J.; Galoob, Stephen R.
Publication:Yale Law Journal
Date:May 1, 2016
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