The (unified?) fiduciary theory of judging: hedgehogs, foxes, and chameleons.
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.
II. 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) Inherent in this authority is the power to interpret the law, the Constitution, and other legal texts (i.e. contracts and wills), and to determine their legal meaning and precepts. (38) In the Anglo-American legal system, judges of higher courts are vested with the authority to set precedents, which will guide other judges, disputants, and citizens in similar situations. The common understanding is that all these judicial activities involve discretion, which affects the legal assets, rights, and interests of others. (39)
Second, judicial authority is grounded on trust. (40) Much has been written about trust and the need to preserve public confidence and support in the judiciary. (41) Trust is central to Leib, Ponet, and Serota's judge-as-fiduciary model, since it enables the relationship between judges and the public to function properly. (42) Litigants, their lawyers, legislators, public officials, and the public at large need to trust the judge determining and affecting their legal assets, interests, and rights. Those who delegate judicial power cannot monitor and oversee its exercise easily, partly because they lack legal expertise. (43) Thus, the propriety of decisions taken by judges that affect us all must be taken "on a kind of faith." (44) Moreover, since judges are lacking "sword" or "purse," trust is needed to ensure the citizens' willingness to comply with their decisions, and the executive branch's willingness to enforce those decisions even in the face of disagreements. (45)
Third, empowering the judge to interpret and apply the law leaves citizens vulnerable. (46) Judges have enormous power and control over persons, properties, assets, rights, and liberties, which leaves us all vulnerable to judicial decisions. (47) In other words, we are all vulnerable to the coercive authority of judges, who may imprison us, stigmatize our dignity, limit our liberties, deprive us of our property, deny us custody of our children, and much more.
Before applying fiduciary obligations to the judge, Leib, Ponet, and Serota try to identify the beneficiary of the judge's fiduciary entrustment. As they note, that identification, although crucial to the exposition of the judge-as-fiduciary model, is not obvious, (48) and will be analyzed more meticulously further ahead. (49) When other scholars (including a few judges) consider this issue, some argue that judges are fiduciaries for class members in a class-action lawsuit. (50) Leib, Ponet, and Serota reject this identification of the beneficiary of the judge-as-fiduciary model, as they find it to be under inclusive and recognize there is a much larger class of citizens requiring fiduciary protection from the judge. (51) Another possible beneficiary to judges' fiduciary obligations, considered by Sarah M.R. Cravens, although far from being clear on this point, is that judges are trustees of the "law" or of the "corpus of the common law." (52) Leib, Ponet, and Serota dismiss this identification also, arguing that "in searching out the relevant beneficiary, one should look to an actual relationship," and that Cravens' argument does not tie judges' fiduciary status to "those actual citizens who have authorized and delegated power (expressly or not) to them." (53) Instead, Leib, Ponet, and Serota argue that:
[T]he beneficiary whose interests the judge is supposed to be holding in trust is "the people."... Hard as it may seem to engage in the fiduciary representation of a class as large as "the people," democratic governance calls for nothing less. To say that judges hold the public's interest in trust is more than mere rhetoric or analogy; the people are their real beneficiaries and judges should conform their conduct to fiduciary standards. (54)
Thus, according to the judge-as-fiduciary model, the people in aggregate are the beneficiaries of judicial trust.
Following the exposition of the judge-as-fiduciary model's basic framework and pivotal axis, Leib, Ponet, and Serota turn to discuss its normative application and practical ramification by translating the classic private fiduciary's duties to the American judge. According to the judge-as-fiduciary model, the main duties of the judge as fiduciary can generally be sorted under three headings: the duty of loyalty, the duty of care, and the duties of candor, disclosure, and accounting. (55)
A. The Duty of Loyalty
Judges are required to be impartial while exercising judicial powers, they must prioritize the interests of the public above their own, and suppress personal motives and preferences. (56) Thus, the duty of loyalty is crucial for corresponding with our paradigmatic understanding of the judge as an impartial arbiter dedicated to upholding the rule of law, embedded within the Anglo-American tradition. (57)
B. The Duty of Care
Judges are expected to fulfill their responsibilities with reasonable diligence and prudence which an ordinarily careful and prudent judge would fulfill in similar circumstances. (58) More specifically, judges are required, prior to making a judicial decision, to inform themselves of all material information reasonably available to them. Still, judges are afforded substantial discretion in the making of judicial decisions, since there is a presumption that in making a judicial decision the judge acted on an informed basis, in good faith, and in the honest belief that the decision taken was in the best interest of the public. (59) Leib, Ponet, and Serota, argue that like the duty of loyalty, the duty of care is already a part of how we understand the judicial role: We expect judges to engage in reason-based decision making, drawing their decisions from well-founded authorities consistent with the rule of law, while giving reasons for their decisions. (60)
C. Duties of Candor, Disclosure, and Accounting
When applied to judges as fiduciary, the duties of candor, disclosure, and accounting accords with our basic expectation of judicial honesty and transparency: there is a widespread anticipation that judges should be forthright in their opinion writing, explaining honestly why they are deciding as they are, (61) and disclose all relevant information regarding their ability to use their powers and discretion in accordance with fiduciary standards. (62) Thus, this cluster of duties improves the monitoring process, by enabling open public debate about the judges' decision and reasoning. (63)
III. THREE CHALLENGES: EXPLANATION, GUIDANCE, AND MUTUAL RESPECT
Having presented Leib, Ponet, and Serota's judge-as-fiduciary model, I now explore the model's potential contribution to contemporary discussions regarding the role of the judge in the Anglo-American tradition. I proceed first by examining the historical origin of the judge-as-fiduciary model. I then consider its initial attractiveness in light of the goals of a theory of judging and its ability to resolve modern disagreements about the role of the judge in the Anglo-American tradition.
A. The Historical Origin of the Judge-as-Fiduciary Model
In the onset of their article, Leib, Ponet, and Serota set an ambitious goal from an historical perspective. While they acknowledge that "[s]ome fundamental questions of jurisprudence have been with us from time immemorial," (64) (e.g. the qualities of a good judge), they believe that there is a "growing urgency to clarify the role of the judge" (65) and declare that their article "seeks to break some new ground on the fundamental inquiries surrounding judicial responsibilities." (66) They do not claim they have discovered a totally brand-new model of the judge. To the contrary, they argue that their judge-as-fiduciary model is embedded in American political thought, the framing of the U.S. Constitution, and the American constitutional tradition. (67) In support, they set out an impressive historical analysis based on numerous legal sources of American constitutional law. (68) However, in the pages to follow, I will venture into the roots of their "historical argument" and make some comments about its indeterminate nature as to the role of the judge in the Anglo-American tradition.
The starting point of their historical analysis is with Plato, noting that the scholars of ancient Greece and Rome viewed sovereign institutions to hold citizens' interests in a public trust, constrained by fiduciary standards. (69) According to Leib, Ponet, and Serota, the framers of the U.S. Constitution fashioned a government based on fiduciary principles, drawing on this Greco-Roman political philosophy. (70) While they mention Plato by name and cite some legal scholarship that grounds the public fiduciary principle in Plato, (71) they do not dwell on the direct significance of Plato's thought to understanding the nature of their judge-as-fiduciary model.
Plato's best-known dialogue, THE REPUBLIC, (72) sketched an ideal state governed by the "guardians," an elite class composed of philosopher-kings, which exercise their powers and discretion impartially and for the welfare of the whole community. (73) Plato was not contented with the characterization of the ideal governance, but tried to outline the specific institutional arrangements to realize it. Hence, he proposed to abolish the institutions of private property and family in regard to the class of guardians, to ensure the philosopher-kings' loyalty to the community as a whole and to prevent them from taking advantage of their position in the ruling class for their own interests. (74) The similarities between Plato's public trust and private fiduciary goes beyond the prohibition to act under conflicts of interest. Professor Natelson interprets Plato as subjecting the guardians to the duty of care, specifically the obligation to equip themselves with the knowledge and education necessary to make appropriate decisions. (75) Moreover, a recurrent theme throughout Plato's REPUBLIC and his other writings is that governing requires skills, knowledge, and expertise that only few could achieve by lifelong education. (76) He compared the philosopher-kings to guardians, captains of ships, shepherds, doctors and other craftsmen (77)--all of which were identified by the law of equity more than two centuries later as having fiduciary duties. (78)
Plato himself did not explicitly refer to judges in these passages. Thus, it seems understandable why Leib, Ponet, and Serota do not examine more carefully his contribution to the contemporary discussion about the role of the judge and use his work only descriptively: as part of the public fiduciary's historical pedigree and not as directly contributing and influencing the prescriptions of their judge-as-fiduciary model. However, using Plato's REPUBLIC as the historical Archimedean point of the public fiduciary principle illuminates its judicial offspring with dubious democratic credential. (79) Furthermore, although the linkage between Plato's philosopher-king and the Anglo-American judge is essentially modern, the ghosts of the Platonic Guardians haunt many of today's discussions about the role of judges in a constitutional democracy. (80) As a matter of fact, more than 20 years ago, Professor Scott Idleman already raised the possibility that the fiduciary judge is essentially undemocratic (81) and also associated it with the Platonic Guardians. (82) Idleman himself endorsed and justified the fiduciary judge despite admitting his undemocratic character. (83) Leib, Ponet, and Serota have no intentions of admitting to this undemocratic character of the fiduciary judge. (84) To the opposite, by properly construing the judge-as-fiduciary model, they seek to vindicate its democratic credibility and better understand the mechanism by which judges may remain responsive to social movements and public opinion as part of various forms of "popular constitutionalism." (85) Could it be that their attempt to downplay the importance of Plato to the fiduciary judge is motivated by their wish to alienate him from the undemocratic charge inherent in the philosopher-king?
I do not argue that their passing reliance on Plato as the birth point of the public fiduciary principle necessarily taints their judge-as-fiduciary model as undemocratic. The terribly important point to make here is not about the democratic or undemocratic nature of the judge-as-fiduciary model, but rather about the indeterminate nature of their historical argument, which is nothing more than the (Platonic?) "Emperor's new clothes." None of the participants in the debates about the role of the judge--including those who support some version of the modern Platonic guardian--justifies judicial dictatorship or argues that judges are free to act as they please, arbitrarily or subjectively motivated by self-interest. (86) Thus, a historical reliance on Plato without a substantial addition seals the fate of the fiduciary judge to reflect long-established disagreements about the role of the judge in the Anglo-American Tradition.
Another benchmark in Leib, Ponet and Serota's historical argument is with John Locke, whose writings also heavily influenced the American founders' generation. (87) The linkage between the fiduciary principle and the judge is much more explicit in Locke's well-known Two TREATISES OF GOVERNMENT. (88) According to Locke, one of the problems of the state of nature is that persons are judges in their own cases. (89) In the absence of a "common judge," every person ascertains, judges, and executes his natural rights. (90) However, being inclined to ill nature, passion, and revenge, as well as self-interest and imperfect reason, individuals will misuse these powers, leading to feuds, conflicts, and war. (91) Consequently, the absence of a "common judge" and the insecurity it causes is the primary reason for seeking a properly limited civil government. Civil government is entrusted with the mutual responsibility of better protecting natural rights to life, liberty, and property, (92) and this trusteeship is to be "directed to no other end but for the peace, safety, and public good of the people." (93) After delegating political power upon civil government, Locke constructs a constitution, which institutionally divides power between an executive branch and a legislative branch, which are meant to check and balance the other. (94) To the contemporary observer, accustomed with the modern Anglo-American system of separation of powers, the courts are absent from Locke's constitutional structure. (95) Although Locke did not devote specific attention to the role of judges, his constitutional scheme rests on the need for a "common judge" to adjudicate disputes impartially. (96) Thus, Lockean heritage provides a solid historical footing in the realm of constitutional thought to Leib, Ponet, and Serota's claim that judges are fiduciaries.
In order to better appreciate the strengths and weaknesses that the Lockean heritage provides to Leib, Ponet, and Serota's historical pedigree of the fiduciary understanding of public institutions in general, and of the courts specifically, few comments are needed. Locke's employment of the idea of a trust --a legal doctrine developed by the English courts of his time (97)--is extremely significant since it highlights certain features of the moral relation between the people and their government (and ultimately their courts). (98) First, unlike a contract, which binds parties to specific performances, a trust sets a more general end to be pursued, and the granting of powers, rights and duties are subjected to this general end." Second, while a trust involves the transfer of rights and powers to the trustee, it establishes a responsibility and limitations on his part on the use of these rights and powers. (100) Third, the pursuit of a general end--i.e. the protection of natural rights to life, liberty and property--requires continuous discretion in the selection of means (by using the powers and rights conferred) necessary to attain the end. (101) Fourth, because it is a trust and not a contract, no consideration is needed in order to bind the government (the trustee) to pursue the assigned general end. (102) Fifth, because a trust is only a conditional alienation of rights and powers, the people (the settlors) may withdraw the trust without specific and defined injury. (103) Sixth, the people (the settlors) are the judges of when and whether the government (the trustee) has acted contrary to the trust, thus forfeiting the entrusted rights: (104)
[T]he legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them. For all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected or opposed, the trust must necessarily by forfeited and the power devolve into the hands of those who gave it. (105)
By using the concepts of trusts and fiduciary obligations, Locke has forged a sophisticated solution to the problem of self-judging, which divorced private interest from the exercise of public power. (106) Legitimate government (part of which is the court system), then, holds its public power only for the purpose of advancing the good of the people who created it, never for advancing its own good. (107) The people are the judges of when and whether the government has failed and acted contrary to the good of the people. (108)
Hence, the Lockean heritage provides an undeniable source of strength to Leib, Ponet, and Scrota's historical argument and any other modern fiduciary theory of judging. (109) Judges are required to be impartial, to use their powers for the good of the public, and are not allowed to act arbitrarily to glorify their powers and prestige. (110)
However, there is one obvious weakness in grounding the historical argument of the judge-as-fiduciary model on the Lockean heritage. Locke presents a consent-based approach to institutional legitimacy, (111) according to which "political power is morally legitimate... only where the subjects have freely consented to the exercise of such power and only where that power continues to be exercised within the terms of the consent given." (112) The employment of the doctrine of trust by Locke is within this consent-based approach. In formulating his political theory, Locke borrowed another concept developed by the English courts: the contract. (113) Locke suggested that a well-developed political society is created in two separable stages. First, the society itself is founded by a contract among all those who wish to be part of it. Here, Locke requires unanimous consent since "no one can be put out of the [the state of nature] and subjected to the political power of another without his own consent." (114) Second, the society's government is created by society's granting (by majority consent) a separate trust, which empowers the government with the political authority which was previously invested in the society by its members. (115) Here, Locke requires majority consent among those who have already consented to civil society. Living aside the normative difficulties of majority consent, (116) remember that Leib, Ponet, and Serota believe that under the fiduciary account, a state's legitimacy is not based on an explicit or implied consent of the governed. Thus, the historical reliance of Leib, Ponet, and Serota seems a complete non sequitur.
My analysis of the roots and origins of Leib, Ponet, and Serota's judge-as-fiduciary model shows the indeterminate nature of their historical argument of their public fiduciary principle. While some features of their judicial model can be supported historically by the writings of Plato and Locke, other central features go against the grain of ideas associated with Plato and Locke in contemporary discussions about the role of the judiciary. Were Leib, Ponet, and Serota aware of the problematic nature of their historical reliance on Plato and Locke? I believe they were; however, this is only speculation based on their attempt to downplay the significance of Plato to the role of the judge and to tone down the consent based approach of Locke. In any case, Leib, Ponet, and Serota have a much stronger argument for the judge being a fiduciary, which they labeled the "functional argument." According to this argument, which is based on fiduciary law jurisprudence, judges function as fiduciary and their responsibilities and obligations are to be conceptualized and concretized by using private law's fiduciaries duties.
B. Explanation, Guidance, and Mutual Respect
Aforesaid, this article examines the judge-as-fiduciary model, and explores the ways by which it resolves disagreements about the role of the judge in the Anglo-American tradition. According to the fiduciary theory of judging, the judge is a fiduciary, since he was empowered over the assets and legal interests of the public. The previous analysis ventured into the historical roots of this model. In this chapter, I examine the functional argument: Is the judge-as-fiduciary model attractive? To answer this question requires first to explain the challenge of constituting a model or a theory of the judicial role. In a nutshell, the challenge faced by the judge-as-fiduciary model can be summed up by: explanation, guidance, and mutual respect. To better understand this challenge, some remarks are needed about the nature of the contemporary discourse of the role of the judge and the motivation underlining the construction of the judge-as-fiduciary model.
Judges and legal scholars have been attempting to clarify the role of the judge in the Anglo-American tradition for centuries. (117) However, it seems safe to speculate that quantitative research would indicate an increasing tendency in legal and political discourse to speak of the role of courts and judges since the 1950s. (118) This resurgence of interest about the role of the judge in the Anglo-American tradition is not a coincidence. The United States, as well as other western democracies, has been witnessing a systematic increase in the power of courts by enlarging the scope and depth of judicial review in the name of an overall goal of safeguarding the rule of law, democracy, and human and civil rights. (119) Not surprisingly, this rise of judges' powers (accompanied by the decline of the elected branches of government) attracts plenty legal and popular attention from supporters and critics alike along the fault-lines of judicial activism versus judicial restraint.
An immense amount of academic research and writing has been devoted in recent decades to the role of the judge in the American society. The extent of this discourse, diverse views, varied judicial models, disagreements, and doubts are beyond the scope of this article. The challenge faced by the judge-as-fiduciary model is to shed new light on the legal discourse about the systemic increase in the judges' powers in the United States and other western democracies. How can the judge-as-fiduciary model contribute to the contemporary discourse about the role of the judge? The answer to this question is found in the characteristics, elements and concepts of Leib, Ponet, and Serota's judicial model. A model or theory of judging tends, naturally, to be a reduction of judicial behavior. There is no point in a theory of judging that merely replicates the infinite complexity of the social, political, and legal phenomena of "being a judge." (120) We seek an explanation to the complex reality surrounding us, which requires a thorough examination that separates the wheat from the chaff. That is, one must attempt to distinguish, discriminate, and set apart the different components and elements of judicial behavior in order to sift the important from the unimportant, the essential from the accidental, the substantive from the marginal. Thus, the success of Leib, Ponet, and Serota's judicial model does not depend upon whether it fully represents the reality of being a judge in a western democracy; rather, its success depends upon whether it contributes significantly to our understanding of the role of the judge, the dilemmas confronted by judges in the Anglo-American tradition, and to their possible solutions. Thus, the success of a judicial model depends upon the emphasis it gives to certain elements and features it perceives as central and essential.
A related question is why do certain judicial models perceive certain elements as central and essential? (121) There is no easy answer to this question. Nonetheless, it could be found in the goals and aims of theorizing and construing judicial models. In the following pages, I will review the goals underlined in the judge-as-fiduciary model and demonstrate its initial potential to achieve these goals by emphasizing concepts and features taken from the law of fiduciary's duties.
The first goal of a theory of judging is to provide an explanation, that is, to enhance understanding and increase our knowledge about judicial behavior. (122) A theory of judging may contribute to how judges, legislators, and citizens think of judging (and its purposes, specifically) and as a part of a whole, consists with other social and political institutions. Thus, a theory of judging is meant to highlight the judge's basic commitments and convictions by underlining the basic concepts they are based upon and which they reflect. Accordingly, the judge-as-fiduciary model should be tested by its contribution to understanding the roles and responsibilities of judges in the Anglo-American tradition, the limits upon them, and the ways by which they should be used and discharged (i.e. if and when judges can rely on their own personal morality). (123)
Correspondingly, the judge-as-fiduciary model turns our attention to the cardinal fiduciary duty of loyalty that prohibits fiduciaries from acting upon conflicts of interest. This prohibition is susceptible to two interpretations: thin and thick. The thin interpretation--widely accepted and almost beyond controversy--requires a judge to disqualify himself in any proceeding in which his impartiality might reasonably be questioned, or if he has financial, familial, or personal bias, prejudice, or interest in the outcome of the proceeding. (124) The thin interpretation is governed by the American Bar Association's Code of Judicial Conduct, state and federal statutes, state and federal constitutions, cases interpreting these sources, and the common law. (125) However, the thin interpretation's relevancy to the contemporary discourse about the role of the judge, which I mentioned above, is low. Another interpretation to this prohibition, and the much thicker one, requires a judge to disqualify himself in any proceeding in which he is perceived by the public at large as having a political or ideological interest in the outcome of the trial. The thick interpretation has much higher relevancy to the discourse about the judge's role and successfully explains the judge's commitment to avoid political activities and shape an apolitical image of the Court while residing on the bench. (126) Also, it gives a more satisfactory explanation of criticisms leveled against the Supreme Court of being "political." (127) Namely, a claim that the Court has breached its core duty of loyalty (the thick meaning), which prohibits the judge from deciding disputes in which it is perceived by the public as having a political interest in the outcome of the trial.
The second goal of a theory of judging is to supply guidance. A theory of judging guides, or helps guide, judges by establishing a system of principles and rules that chart the landscape of civil rights, social goals, and public interests. A theory of judging assists judges to decide "hard cases," in which they have either no convictions, weak convictions, or contradictory convictions in regard to how the case should be decided.
For example, the judge-as-fiduciary model should be tested by its contribution to guide the judges in setting the limits of the "political question doctrine," which states that the court should abstain from resolving constitutional issues better left to the national political branches. (128) Whether there should be a political question, and if so, what are its limits, has been a contentious, controversial issue since the 1960s. (129) It is interesting to note that both sides of the aisle--proponents of judicial restraint and the proponents of judicial activism--support their approach on the need to maintain and accommodate public trust in the court. The proponents of judicial restraint argue that deciding controversial constitutional disputes would diminish public trust in the court. The proponents of judicial activism argue that refraining from deciding certain questions due to their political aspect would leave "black holes" in the law, and, thus, would diminish public support in the court. (130)
Can the judge-as-fiduciary model resolve this controversy? According to fiduciary law, the criteria to establish a breach of the duty of loyalty is not inquiring whether the conflict of interest has influenced the discretion of the fiduciary, rather it prohibits the fiduciary from being in such a situation at all. Thus, the judge-as-fiduciary model would require the judge to adhere to the political question doctrine and refrain from adjudicating disputes in which he is perceived to have a political interest in the outcome. Remember, according to Leib, Ponet, and Serota, fiduciary duties are meant to reduce costs in monitoring judicial behavior. (131) The public, and the common citizen, lacks legal expertise, which makes supervising costs very high. Establishing a wide rule of non-justiciability would help to reduce these costs.
The third goal of a theory of judging is to advance constitutional agreement (or at least to narrow disagreement) and garner mutual respect about the role of the judge in a constitutional democracy. Hence, a theory of judging enables the social cooperation of judges, lawyers, litigants, public officers, and the public at large to be grounded on mutual respect and shared values. A theory of judging focuses on controversial issues about the role of the judge and tries to expose constitutional consensus in the shape of basic values, methods, and processes that are shared by supporters and critics of judicial activism. Accordingly, the judge-as-fiduciary model seems to possess the potential to achieve some constitutional agreement since it focuses on the need to limit judicial discretion, which naturally follows the expansion of the relative role of courts in American social life, (132) the requirement to be impartial, and the prohibition to act under conflicts of interest, and the need to advance and maintain public trust and support for the Supreme Court. (133)
IV. THE PRIVATE LAW FIDUCIARY DOCTRINE: REVISITED
The proposition, "the judge is a fiduciary," tries to illuminate one legal institution (the judge) by the features and concepts of another--fiduciary law. Thus, a fiduciary theory of judging should first identify the nature and substance of fiduciary law, the historical circumstances that enabled its creation and shaped its development, and the normative ramification following the existence of fiduciary relations. Leib, Ponet, and Serota's argument follows this line of thought: first, they conceptualize a clear understanding of the private fiduciary principle; then, they survey its translation to a principle of public law; and finally, they shed light on the institution of judging by the institution of fiduciary law. In the following pages, I revisit the private law fiduciary principle and argue that Leib, Ponet, and Serota's conception of the private fiduciary principle degrades and omits cardinal aspects of fiduciary law, and consequently obscures and conceals significant aspects of the judge-as-fiduciary model and the qualities of good judging. The reduction of private fiduciary law by Leib, Ponet, and Serota is carried out in four interrelated grounds: the historical development of fiduciary duties, the content of fiduciary duties, the remedies of fiduciary duties, and their normative foundation. These grounds create the great complexity, flexibility, and specificity of fiduciary law and are required for a thorough understanding of fiduciary law, and, consequently, for an adequate construction of the "new" judge-as-fiduciary model.
A. The Historical Development of Fiduciary Duties
From a historical perspective, the law of fiduciary duties originated in Equity (134) and developed by the Court of Chancery, headed by the Lord Chancellor, as opposed to laws which emanated from the common law courts (the King's Bench, the Common Pleas, and the Court of Exchequer). (135) Equity granted relief in various situations involving one person's abuse of confidence reposed in him by another, while common law did not. (136) The relief, provided by the Lord Chancellor in a specific case, followed broad principles and involved a degree of discretion, while frequently relying on general words such as "trust" and "confidence." (137) John Seldon, an English jurist and legal scholar of the 17th century, characterized Equity as crooked and grounded on the length of "the Chancellor's Foot." (138) It certainly seems that this early jurisprudence of the law of fiduciary obligations was based upon moral intuitions and the Chancellor's conscience, and was lacking clear definitions or rules. (139)
In the 19th century, as Equity developed, precise definitions and concrete rules gradually replaced the Chancellor's discretion. (140) Correspondingly, the word "trust" was designated with its modern formal meaning--a relationship where property is held by one party (the trustee) for the benefit of another (the beneficiary). (141) This meant, as Professor Sealy noted, that the other situations formerly described vaguely as "trust" were now left without a name. (142) After a period of uncertainty, the word "fiduciary" was adopted to describe situations, which fell short of the now strictly defined trust, in which one person was nonetheless obliged to act as trustee. (143) These trust-based relationships are labeled in private law as "fiduciary relationships," emerged in contexts where one person has power over the assets or legal interests of another (and are not limited to the situation of trust). Classic examples include attorney-client, trustee-beneficiary, agent-principle, corporate officeholder-shareholder, and doctor-patient relationships. (144)
In order to complete this historical review, it should be noted that even after the formal rules and concepts took shape, the law of fiduciary duties continued to develop in an evolutionary or casuistic manner from one case to another. (145) The extension of fiduciary duty to new situations is accomplished by analogy to the classic examples of fiduciary relationships, in which the duty conventionally applies. (146) However, the basis of this analogy is not, for the most part, spelled out and remains obscure or even changes from one case to another.
Thus, one of the significant reductions of Leib, Ponet, and Serota's judge-as-fiduciary model is the omission of the historical development of fiduciary law. This omission includes taking a stand as to the methods and techniques used by courts to expand fiduciary duties to new situations and to tailor and create new rules for these new fiduciary relations. (147) The fact that Leib, Ponet, and Serota have little interest in the historical development of fiduciary duties is terribly important as they craft their own judge-as-fiduciary model. First, their judge-as-fiduciary model does not, and cannot, explain the everyday working methods of the judge in developing the judge's own fiduciary obligations and responsibilities. Is the fiduciary judge implementing the "one case at a time" judicial decision-making method when he deliberates on his own powers and responsibilities? (148) Or is he aspiring for a "principled reason giving" method? (149)
Second, ignoring the historical development of fiduciary law enables Leib, Ponet, and Serota to sweep aside considerable areas of disagreements and indeterminacy (i.e., the content, remedies, and normative foundation), which are the result of the flexibility of fiduciary duties and their situation-specificity. This omission, in turn, enables them to craft a unified theory of fiduciary duties, and consequently of the role of the judge, without putting the time and effort of defending it against the bedrock of case-specificity that characterizes fiduciary obligation's jurisprudence.
B. The Content of Fiduciary Obligations
Describing the duties considered fiduciary, as well as their content, is not an easy task. This is, in part, because fiduciary duties in new settings were developed by relying heavily on comparisons to more conventional contexts. Countless variations on the extent of duties involved, and their stringency, tailor the specific content to the specific context. Some of the leading commentators even question the existence of a unified fiduciary law, (150) and prefer to speak about a "bundle" of duties with "plurality of strands." (151) Moreover, there is significant disagreement on the content of fiduciary liability (152) and its normative foundation. (153) The three main fiduciary duties, which lie at the heart of Leib, Ponet, and Serota's judge-as-fiduciary model, enjoy some consensus among legal scholars. This consensus is contingent upon a high level of generality, which raises doubts about its ability to better explain and guide judicial behavior than other common theories of judging. The three main types of duties are: 1) the duty of loyalty; 2) the duty of care; and 3) the duties of candor, disclosure, and accounting.
1. The Content of the Duty of Loyalty
Under the Duty of Loyalty--the most prominent and distinct feature of fiduciary relationships--the fiduciary is required to act in the best interest of the beneficiary and provide a faithful service when executing a fiduciary mandate. (154) While every fiduciary is subject to the duty of loyalty, its intensity varies in accordance to the circumstances establishing the fiduciary relationship. (155) Though different accounts have been offered to the duty of loyalty, the fact remains that none have prevailed.
The proposition that judges, like any other public officials, (156) are required to act in the best interest of the public or to advance the common good would (probably) rally broad support. (157) Leib, Ponet, and Serota contribute to the discussion about the judicial role when they emphasize that judges act for the body politic, not for themselves, and that they have a duty of good faith in making their decisions. Nonetheless, it is a pretty thin conception of the judicial role, and the problem lies in explaining and elaborating more precisely what is the best interest of the public or the common good and the institutional design--the roles and responsibilities of the three branches of government--necessary to realize it. (158)
Certainly, one could construe a judicial model based on the specific conception of the common good or the best interest of the public. (159) However, one should take into account the fact that such a judicial model would be highly questionable, since political philosophy has been debating these issues basically since the dawn of humanity with no solution in sight. (160) The question has never been just what is the proper conception of the common good, but also how do we defend it, and what are its practical applications? (161) Moreover, countries belonging to the Anglo-American legal tradition differ from one another, and what is good for the public in the United States may not be good for the public in the United Kingdom, Canada, or in Israel. (162)
Even a further concretization of the duty of loyalty, by prohibiting fiduciaries to act under conflicts of interest, (163) will fail to provide a sufficient standard to resolve current disagreements about the role of the judge. As I will explain, this prohibition is usually expressed in the form of two rules: the conflict of interest rule and the conflict of duty rule.
The conflict of interest rule prohibits the fiduciary from allowing personal interests, actually or potentially, to conflict with the interests of the beneficiary. (164) Namely, the conflict of interest rule prohibits disloyal behavior based on the personal interest of the fiduciary. Let us suppose that a judge is confronted for the first time with the question whether he and other judges should have the authority to strike down legislation that violates the constitution. (165) An affirmative answer would definitely make his job more influential, prestigious, and interesting. It could be argued that the judge has a personal interest, and that deciding this question would amount to a breach of the conflict of interest rule. In opposition, it could be argued that these side benefits of prestige and influence should be considered legitimate earnings and profits of the fiduciary judge for discharging his duties as the guardian of the constitution.
The conflict of duty rule prohibits the fiduciary from acting under conflicting mandates. Namely, it prohibits disloyal conduct grounded in the conflicting duties to multiple third parties, even if the fiduciary's self-interest is not in play. (166) In cases, in which these conflicts cannot be avoided, the fiduciary law requires the fiduciary to act evenhandedly, reasonably, and impartially. (167) In western democracies these precepts are neither novel, nor beyond controversy. Nevertheless, the problem lies when we try to translate these abstract concepts to everyday social reality and when principles and values considered consistent with these ideals contradict each other. (168)
2. The Content of the Duty of Care
In contrast to the duty of loyalty, which attracts common agreement, the duty of care raises serious doubts by commentators in regards to its classification as a fiduciary duty. (169) Nonetheless, some view it as part of the core fiduciary duties. (170) It requires the fiduciary to perform his tasks prudently and meticulously as a reasonable fiduciary would have performed under similar circumstances. (171) Fiduciary law's jurisprudence has interpreted this requirement along the lines of procedural review: the duty to make decisions that are based on information and substantive reasons that a reasonable fiduciary is required to gather under those circumstances. This requirement provides a wide discretionary power since it leaves the substance of the decision made by the fiduciary beyond review. The legal presumption is that the fiduciary took the decision in good faith and on behalf of the best interest of the fiduciary (the business judgment rule). (172) It seems that by adopting this rule, Leib, Ponet, and Serota show clear preference to procedural judicial review over substantive review, but without explaining the justification for such a review in circumstances that are not limited to economic considerations. And even then, this standard still begs the question: what are the reasons and considerations a reasonable judge is expected to gather prior to making a judicial decision?
3. The Content of the Duties of Candor, Disclosure, and Accounting
Aside from the two fiduciary duties reviewed above, candor, disclosure, and accounting are a set of duties that are routinely associated with fiduciaries. (173) There is some disagreement whether these duties emanate from the classic fiduciary duties or have independent and separate footings. (174) In any case, fiduciary law imposes duties of candor, disclosure, and accounting directed by numerous specific state and federal statutes and judicial jurisprudence, which necessitate the full and accurate disclosure of all relevant information pertaining to the relationship. (175) Additionally, these duties may take the form of a general requirement of "accounting," necessitating accurate bookkeeping subject to inspection by the beneficiary. (176) This set of duties, which Leib, Ponet, and Serota adopted as part of their judge-as-fiduciary model, is also very abstract, making it hard to see how it could resolve contemporary scholarly disagreements about the nature and extent of judicial reasoning. Professor Ronald Dworkin argued, for example, that the judge should strive to establish through its decisions broad rules that transcend the immediate parties to the dispute, give theoretical depth to decisions reached, and engage in supplying reasons that "answer the question of legitimacy" in a very broad and universal sense. (177) In opposition, Richard Posner and Cass Sunstein argued that the judge should seek to decide cases on narrow grounds, aspire to shallowness rather than theoretical depth, and give limited reasoning for their judgments which are based on social, cultural and historical facts and circumstances. (178)
C. The Remedies of Fiduciary Duties
A significant reduction of fiduciary law by Leib, Ponet, and Serota's judge-as-fiduciary model concerns the remedies courts impose when they find a breach of fiduciary duty. (179) Namely, fiduciary law creates civil causes of action for judicial enforcement of fiduciary duties and standards. (180) Leib, Ponet, and Serota do note that since judges enjoy absolute immunity from civil liability for all acts taken in their judicial role, their judicial model does not provide for civil causes of action against judges for breach of fiduciary duties. (181) However, they argue that viewing fiduciary principles as solely a means of enforceability by civil causes of action is misleading; the discrepancy between private fiduciary law and judge-as-fiduciary model is twofold. (182) First, this is a case of imperfect enforcement--which does not exclude the recognition of fiduciary duties and standards. (183) Second, even without civil causes of action, there are numerous methods of enforcing fiduciary constraints on judges: impeachment, criminal actions, judicial performance evaluations, judicial elections, and confirmations. (184) In their view, "all these methods of keeping judges accountable can utilize fiduciary duties as baselines to evaluate, assess, and monitor for breaches of fiduciary obligation." (185)
I believe they are wrong. A civil cause of action for breach of fiduciary duties is a core feature of fiduciary law, and there are serious problems in translating it to a feature of judging. Let me explain. There is a set of civil remedies that courts routinely impose when they find a breach of a fiduciary duty. This robust set of remedies ultimately tends to be supracompensatory--even punitive--in order to deter abuses of power and to correct disloyalty. (186) At first glance, one might be tempted to define the entire field of fiduciary law by the remedies extracted from fiduciaries. (187) A second glance, though, reveals that fiduciary law exhibits unique complexities not only in the content of duties, but also in remedies. Such complexities are twofold. First, the historical development of fiduciary remedies in the Anglo-American legal system hinders a unified and systemic analysis. Second, the remedies get enforced with variable degree of strictness depending on the relationship and the nature of the breach. (188)
The slow evolutionary and casuistic fiduciary jurisprudence could, at least in part, be characterized by the maxim ubi remedium ibi jus (where there is a remedy, there is a right) (189) as opposed to the maxim ubi jus ibi remedium (where there is a right, there is a remedy). (190) If a plaintiff sues "a party analogous to a fiduciary and gets a remedy previously given only against fiduciaries, then in the sense most important in the common law that party is a fiduciary." (191) Certainly, in a fully and well-developed legal field the two maxims are completely interchangeable. (192) However, in the development of legal rights and remedies over a long period of time, rights and remedies interact. Consequently, the development of remedies sometimes precedes the development of rights and even changes our perception of the rights we possess.
I do not want to enter into the rights-remedies debate. What I want to point to is Leib, Ponet, and Serota's problematic understanding of fiduciary law, which downplays the significance of civil remedies. If a plaintiff sues a judge in civil court, and does not get remedies routinely given against fiduciaries (because judges enjoy absolute immunity from civil liability), then, in an important sense, it could be argued that judges are simply not fiduciaries.
But let us suppose, for the sake of argument, that Leib, Ponet, and Serota reform their judicial model to include civil causes of action against judges and require (as a normative precept) the repeal of judges' absolute immunity from civil liability. (193) Remember that fiduciary law remedies get enforced with variable degree of strictness depending on the relationship and the nature of the breach. In such a case, their model would directly encounter an array of complex questions with no easy solution.
First, remedies are designed to track someone's entitlements--to give people their due. Who is the right-holder? The individual person (a losing party before the court), groups of persons adversely affected by the judge's decision, the legislators that had enacted the statute the judge misinterpreted or struck down, or the U.S. President that nominated the Judge? According to Leib, Ponet, and Serota, none of them and all of them are right-holders since they claim that the beneficiary of the judge's fiduciary entrustment is "the people" in aggregate. However, "the people" cannot sue in civil courts--only persons and groups can sue on their own behalf, or persons who (allegedly) represent the public at large.
Their underdeveloped discussion of fiduciary remedies helps them dodge the question of standing in a private law setting, which is analogous to the question of standing in public law. The question of standing is often marginal in private fiduciary law, since it is focused on the enforcement of fiduciary duties by specific right-holders, namely, beneficiaries. Standing becomes an issue in private fiduciary law when the grantor seeks to enforce a trust that he has created and in which he has retained several, some, or no powers or beneficial interests. (194)
However, when Leib, Ponet, and Serota translate the private fiduciary principle to public law, with no specific beneficiary in mind, the question of standing becomes central as it relates to enforcement and remedies. A clear understanding of civil causes of action would have answered the standing question --who has the right to sue due to the breach of the judge's fiduciary duties? In fact, it would have also committed Leib, Ponet, and Serota to one of the sides participating in the traditional debate about the judicial role. (195) A scholar who perceives the sole role of the judge in the area of public law is to resolve disputes between specific parties will tend to provide remedies only to persons who pass a minimum requirement of "injury in fact" or "distinct and palpable injury."
By contrast, a scholar who perceives the judge as responsible for the protection of the rule of law and democracy (in a broad sense of these concepts), will tend to expand the rules of standing and afford remedies to persons and groups who seek the vindication of public interests and values, without suffering an injury in fact. (196)
This may be exactly the reason why they tried to avoid the question of civil causes of action altogether. However, the question of standing is unavoidable, since all existing methods of keeping judges accountable in accordance to fiduciary standards, as mentioned by Leib, Ponet, and Serota (e.g. impeachment, criminal actions, etc.), already implicitly incorporate standing, and only certain people or organizations are authorized to use those methods. (197)
Second, civil remedies are typically designed to compensate the victim for an injury by putting the victim in the position he would have been in if the injury had not occurred. Plainly, the remedy must fit the violation. However, trying to remediate breaches of the judge's fiduciary duties by civil remedies seems questionable in many cases, if not wholly incommensurable, compensating the loss of apples by oranges. For example, disgorgement is the common and central remedy that often follows the breach of the duty of loyalty: if a fiduciary has betrayed the principle of unselfishness, he will have to disgorge all of his profits. (198) The rationale for the disgorgement remedy lies in its deterrence potential (by castrating incentives for unlawful profits) and in the fact that beneficiaries will rarely be capable of formulating precise expectations. (199) This remedy is extracted even if the fiduciary's self-interested action caused no harm to the beneficiary. (200) Accordingly, the beneficiary could sue for bribery payments given to the fiduciary, even if there is no known harm caused to the beneficiary.
Let us leave aside the problem discussed above about who has the right to sue for the disgorgement of the bribery payments made to the judge. It is clear that disgorgement falls short of remediating most of the interesting constitutional cases involving an alleged breach of the judge's fiduciary duties where no criminal or unlawful payment has been made to the judge. In these cases, the judge has failed to identify the best interest of the public, to advance the common good, to adhere to his original intended authority, or to act evenhandedly and reasonably. But what was his gain and how should it be measured? Quantifying these transgressions to financial gains and losses that should be compensated or disgorged seems highly questionable and maybe even incommensurable. In other words, including civil causes of action in Leib, Ponet, and Serota's judicial model requires a kind of utilitarian or economic calculation about the "gains" of the judge and the "harm" to the public that most constitutional theories regarding the role of the judge would not condone. (201)
To sum up, the downplay of the significance of civil remedies to their judge-as-fiduciary model, enables Leib, Ponet, and Serota to avoid fundamental questions and disagreements regarding the role of the judge and the values and goals he should promote. This is not surprising, since most disputes over remedies have nothing to do with remedies and everything to do with substantive issues. (202)
D. The Normative Foundation of Fiduciary Duties
Another significant reduction in Leib, Ponet, and Serota's judge-as-fiduciary model relates to the normative foundation of fiduciary duties. Leib, Ponet, and Serota explain that the fiduciary principle and its concomitant obligations is aimed to police opportunism and discretion in contexts where monitoring costs are high and bonding is critical for the relationship to function. (203) However, this view does not reflect a consensus among leading commentators of fiduciary law.
The normative foundation of fiduciary duties has been examined by scholars for the past three decades. (204) However, this is a relatively recent development for such an ancient institution rooted in the equity of the middle ages. It seems that, here too, the evolutionary development of fiduciary law and the casuistic nature of its jurisprudence have influenced the theoretical and academic examination of fiduciary duties. Until the 1980s, fiduciary duties had been studied in the context of the specific substantive areas of law in which they appeared (corporate law, agency law, lawyers' ethics, labor law, etc.), and involved mostly the doctrinal analysis of rules and principles in each specific area in light of specific precedents and sporadic legislation. (205) Paul D. Finn's 1977 publication, Fiduciary Obligations, is generally considered a watershed. Though Professor Finn doubted the claim that fiduciary duties are based on a unified normative base, (206) the unified discussion of the various types of fiduciaries under the same hospitality created a new scholarly framework for an academic discourse for other commentators that were much less critical about the existence of such a unified normative foundation.
The contemporary discussion of the normative foundation of fiduciary duties and their justification can be divided into three main groups: 1) the Voluntarist Account; 2) the Universalist Account; and 3) the Associative Account. The Voluntarist Account --according to this line of thought, the normative force of fiduciary duties lies in explicit or implicit consent, or other voluntarist undertaking by the fiduciary to behave in a particular way. (207) Thus, the justification of fiduciary duties is similar to the ordinary justification of contractual terms. The Universalist Account--according to this line of thought, the normative foundation of fiduciary duties lies not in a voluntarist action, (208) but in advancing universal goals, such as morality, (209) justice, (210) utility, (211) trust, (212) or other values prescribing the imposition of duties upon the fiduciary towards the beneficiary. Thus, the justification of fiduciary duties is based on the qualities, virtues, and advantages of imposing them on the fiduciary towards the beneficiary. However, the question of what are the exact qualities, virtues, and advantages of fiduciary duties is under intense disagreement among legal scholars. The Associative Account--according to this line of thought, the normative foundation of fiduciary duties can be found in the nature and characteristics of the fiduciary-beneficiary relationship. Thus, the justification of fiduciary duties derives from the fiduciary's unique position vis-a-vis the beneficiary. These questions--what are the indicia marks of a fiduciary relationship and why are fiduciary duties derived from them--are also under intense disagreements.
My examination of the normative foundation of fiduciary duties indicates three additional difficulties with Leib, Ponet, and Serota's judge-as-fiduciary model. First, as with fiduciary duties, contents, and remedies, there is an extensive area of indeterminacy in regard to their justifications and the goals they are set to advance. Narrowing fiduciary law to the goal of reducing monitoring costs radically reduces the institution of the fiduciary and omits central goals from the judge-as-fiduciary model. For example, if the normative source of fiduciary duties stems from the voluntarist account, the judge's oath to faithfully and impartially apply the Constitution and laws of the United States becomes central, and our efforts should be devoted to understanding the expressed or implied terms of this oath. (213) However, if fiduciary duties are based on the universalist account, universal values and reasons gain priority, and our efforts must be given to the understanding of the principles of morality and justice. Second, Leib, Ponet, and Serota's judge-as-fiduciary model fails to reflect the interconnections of contents, remedies, and justifications in fiduciary law. The diversity of goals affects the contents, stringency, and extent of fiduciary duties that are being imposed upon various types of fiduciaries in different circumstances and contexts. Third, while the three main groups of justifications (the Voluntarist Account, the Universalist Account, and the Associative Account) assimilate the three indicia marks of fiduciary relations noted by Leib, Ponet, and Serota (discretion, trust, and vulnerability), their relative weight, the manner by which they should be incorporated, and the reasons for their importance are very different. Thus, fiduciary duties imposed in specific situations upon specific fiduciaries are not factors of the three indicia marks, but rather factors of the three main groups of justification.
V. THE "NEW" JUDGE-AS-FIDUCIARY MODEL
Based on the above discussion, I reevaluate the judge-as-fiduciary model in light of the disagreements about the role of the judge in American society. We have learned that there are serious doubts in perceiving fiduciary law as a unified system of duties, remedies, and justifications. If we replace Leib, Ponet, and Serota's perception of private fiduciary law with my fuller account, the judge-as-fiduciary model will consist of a bundle of duties, remedies, and justifications with varied degrees and intensities to guide and explain judicial behavior.
Let me explain. The judge-as-fiduciary model imposes substantial duties upon the judge since he is empowered over the legal assets and interests of the public. Nonetheless, the intensity, stringency, extent of the duties, and remedies imposed vary from one context to another, depending on the relationship at hand. (214) Thus, even if we suppose that judges owe fiduciary obligations, these obligations are imposed with varied intensity and extent on agents, trustees, attorneys, corporate officeholders, doctors, and guardians. This relates to Justice Frankfurter's celebrated remark that:
[T]o say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as fiduciary? In what respect has he failed to discharge these obligations? And what are the consequences of his deviation from duty. (215)
Thus, the judge-as-fiduciary model must account not only for the imposition of fiduciary liability, but also to whom the judge is a fiduciary, and the sources, nature, and extent of his liability. In this regard, the various types of fiduciary relationships (agents, partners, guardians, etc.) can assist our reply to these questions. In fact, many scholars and judges have already used fiduciary typology to describe the role of the judge. Judge Frank H. Easterbrook views the role of the judge as the agent of the political branches: "Judges must be honest agents of the political branches. They carry out decisions they do not make. Judges who appreciate the economics of legislation and the markets will be good agents as well as honest ones. Good agents reduce the costs of implementing laws." (216)
Judge Aharon Barak dismisses the principle-agent paradigm and prefers the vision of partnership, another conventional fiduciary relationship. (217) Judge Barak writes:
The judge is a partner in creating this system of law. The extent of this partnership varies with the types of law being created. In creating common law, the judge is a senior partner. In creating enacted law, the judge is a junior partner. Nonetheless, he is a partner and not merely an agent who carries out the orders of his principle. (218)
The third type of a conventional fiduciary relationship used to describe the role of the judge in the Anglo-American tradition is the guardian. We have already identified this type of the fiduciary judge when we reviewed the historical origin of Leib, Ponet, and Serota's judge-as-fiduciary model. (219) As they argue, the fiduciary guardian need not be undemocratic, although this is not uncontroversial and depends also on what one means by "undemocratic." (220) Professor Sujata Gadkar-Wilox, for example, views the judge as the very guardian of democracy itself, ensuring that majoritarian legislative enactments do not deprive individuals of their fundamental rights and liberties. (221) This view correlates to current public perceptions that view courts, and especially the Supreme Court, as the guardians of the American people or of the United States.
The differences between these sub-models of the fiduciary judge can be illustrated by the amount of discretion and public trust accorded to judges. For example, the guardian-fiduciary judge enjoys the widest discretionary powers and thus requires high levels of support and approval from the public. The partner-fiduciary judge comes in second place, giving the judge only mid-level discretionary powers and thus requires only mid-level public support and approval rates. The agent-fiduciary judge provides the judge with the narrowest discretionary power and thus requires a low level of public trust. It should be noted, however, that discretion and trust are not the sole parameters by which to compare the sub-models of the judge-as-fiduciary model. The contents of fiduciary duties, the remedies available against their breach, and their normative justifications can also be utilized to better understand the differences between these and other submodels of the fiduciary judge. (222) Taking these additional parameters into account demonstrates the complexity of charting the sub-models of the judge-as-fiduciary model and the numerous judicial models that could be devised and employed by scholars and judges.
I wish to draw attention to the ways by which disagreements about these other sub-models regarding role of the fiduciary judge can be resolved. Arguably, the judge-as-fiduciary model requires us to deliberate, weighing the pros and cons of the different sub-models to determine which of the sub-models best explains and guides judicial behavior. This line of argumentation is taken by Judge Barak, who dismisses the agency model since it does not fully reflect the complexity of the judge's role and the essence of substantive democracy. (223) Judge Barak's argument for preferring the partnership model over the agency model is beyond the scope of this article. What is terribly important to note, though, is that a preference to a certain sub-model cannot come within the normative precepts of the judge-as-fiduciary model, which is inclusive of all of these sub-models. Thus, it is not the judge-as-fiduciary model that resolves this disagreement about the role of the judge, but rather an alternative or additional normative framework of social facts that are beyond this article.
The second possibility to reconcile the different sub-models of the fiduciary judge is by formulating a new model consisting of elements of each sub-model. But which elements? In what constellation? And what is our method of choice and arrangement of these elements? It seems that as far as the judge-as-fiduciary model is concerned, we again reach a dead end, and the justification for the "new integrative model" must be based beyond our fiduciary laws' normative framework.
The third manner to resolve the problem of having a multitude of sub-models under the heading of the judge-as-fiduciary model is by limiting each sub-model to certain identifiable circumstances. (224) The judge is a guardian of the constitution when he interprets its provisions. The judge is an agent when he merely states the clear meaning of the legislative text. The judge is a partner of the legislator when he interprets vague statutory provisions. This manner of resolution also seems problematic since, in crafting the judge-as-fiduciary model, the case-specificity that characterizes fiduciary law's jurisprudence was omitted. (225) Without this specificity, the fiduciary judge need not be a guardian in interpreting constitutional provisions; he can also be seen as an agent of the founding fathers enforcing their original intent.
I do not claim that there are no right answers to these questions. I argue that the answer must come from outside the judge-as-fiduciary model, and thus it is incapable of resolving contemporary disagreements about the role of the judge. But before succumbing to the conclusion that "it may be that there is no unified field theory of the judge," (226) I wish to dwell further on the question to whom judges owe their fiduciary obligations. Remember that Leib, Ponet, and Serota identify the beneficiary of the judge's fiduciary entrustment as "the people" in aggregate. (227)
This determination does not seem problematic at first. A well-ordered theory of judging must take into account that judging is a collective activity: the judge is a team player and not a lone wolf. (228) The judge neither creates nor enforces the law by himself. Judges are only one part of an entire structure of social cooperation, which includes legislators, lawyers, litigants, doctors, guards, wardens, and the public at large. (229)
It seems, however, that as Leib, Ponet, and Serota advance their argument they feel uncomfortable to speak about the beneficiary of judicial trust in the singular--"the people"--since they are well aware that "the people" consists of different groups, audiences, and voices. (230) Thus, towards the end of their article, they argue that the precepts of the judge-as-fiduciary model should take into account that "the class of beneficiaries can vary from case to case" (231) and must consider "the class of beneficiaries implicated in any given case." (232) But now it appears that the "cat is out of the bag." Could it be that the judge-as-fiduciary model is actually a corporate officeholder and the citizens are shareholders, or more precisely class members of shareholders? Perhaps the problem Leib, Ponet, and Serota were tackling is not the different types of fiduciaries, but rather the problem of multiple beneficiaries with conflicting interests.
At the core of fiduciary law is the duty to act in the best interest of the beneficiary. This requirement is concretized by the conflict of duty rule, which prohibits the fiduciary from being a servant of two masters. The conflict of duty rule comes into play only when fiduciary actions mandate conflict. To make sure that the judge's fiduciary duties do not conflict, the beneficiary of judicial entrustment is identified as the public at large. But this solution to the difficulties of multiple citizens and groups is wholly unconvincing in a modern society. So, Leib, Ponet, and Serota move to speak about classes of beneficiaries, noting that if the conflict of duty cannot be avoided, the fiduciary is required to act evenhandedly and reasonably towards all beneficiaries. (233) Here, the implicit comparison is between the judge and an officeholder.
I find this response unconvincing. Comparing civil society to a gigantic firm is hardly novel and very limited in scope. Corporate activities are mostly aimed to maximize financial profits for their shareholders with explicit or implicit priorities between classes of shareholders. No such assumptions can be made in regard to civil society or in regard to judicial behavior. Furthermore, is the judge the CEO of civil society or is he a part of a regulatory agency inside or outside the company?
Leib, Ponet & Serota do not consider this comparison to its full extent and the corporate fiduciary scheme of the state is left underdeveloped. Instead, they return to speak about the people in singular and the agency paradigm, hoping to unify what has, in my opinion, already come apart.
"Just as the legislature acts as the people's fiduciary when passing laws, the judiciary acts as the legislature's fiduciary when interpreting those laws. It is commonplace to understand the judiciary as the 'agent' for the legislator-principle...." (234)
Leib, Ponet, and Serota explain that administrative agencies and officers implementing legislative command are also fiduciaries and similar principles of deference are appropriate, (235) that is, the administrative agency or officer is an "agent" of the legislature. While they ignore administrative agencies and officers implementing judicial command, I see no reason from concluding that they are also agent-fiduciaries and similar principles of deference are appropriate. But isn't the judge also a fiduciary of the administrative agencies and officers who trust him and are vulnerable to his use of judicial discretion? As noted by Professor Robert Cover thirty years ago, "[t]hese wardens, these guards, these doctors, jump to the judge's tune." (236)
Fiduciary law, which is the normative ground of the judge-as-fiduciary model, recognizes the vast diversity of human relations that are the ground for fiduciary duties. The judge-as-a-fiduciary-model should acknowledge the rich relationships in light of the environment through which the judge operates. This view is compatible not only with the theme of constructing a fiduciary theory of government to limit public officials' discretion, (237) but also with what Professor Tamar Frankel has called "the rise of fiduciary society," (238) based predominantly on fiduciary relations. (239) Therefore, the judge's role may well be consistent of all three types at once (guardian, partner, and agent) and much more, depending on their expertise and skill-set. (240)
The problem of reconciling the judge's different roles relates to the myriad of relations judges maintain with others, which generate numerous obligations of varied nature and stringency across the judicial landscape. The inability of the judge-as-fiduciary model to resolve disagreement about the role of the judge lies in the historical origin of fiduciary law and its normative grounds. (241) As we have seen above, fiduciary law is the product of many judges and courts working over many centuries, deciding one case at a time, mostly using analogies and fact-specific reasoning, and without attempting to present an overarching or grand theory of fiduciary law. In addition, fiduciary law jurisprudence reflects an incoherent normative foundation (voluntarist, universalist, and associative accounts), and the imposition of duties is made in varied social contexts and circumstances. This hinders any attempt to present a unified theory of the judge's role based on fiduciary law. Leib, Ponet, and Serota's attempt to unify the judge-as-fiduciary model by reducing its normative foundation to reducing monitoring costs on fiduciaries, omitting the fiduciary law's remedial aspects, and wiping out the different groups and individuals from which the public is composed. This attempt is artificial and unpersuasive. Why should we unify all of the numerous "beneficiaries," which maintain actual relations with the judge, under one title ignoring their differences (in terms of interests and rights)? Why not recognize the actual and diverse relations judges maintain with lawmakers, law-enforcers, lawyers, litigants, and other groups and individuals?
From the start, speaking about "the" fiduciary theory of judging is misleading, and one should speak about fiduciary theories of judging or about models of the fiduciary judge. The results reached should not surprise us, since fiduciary law was developed mostly by judicial means with their strength and weaknesses, which left their marks over the centuries on the institution of fiduciary law. (242) The inability to reach a unified theory of Anglo-American fiduciary law testifies not only about the nature of fiduciary law, but also reveals some truths about the nature of the judicial function itself: its rules, abilities, and limitations.
VI. Two CONCLUSIONS: HEDGEHOGS, FOXES, AND CHAMELEONS
Indirectly, this article challenged an old judicial philosophy--or should I say a common strand in the philosophy of judging--about the unity of values, principles, and roles. Its secondary title--HEDGEHOGS, FOXES, AND CHAMELEONS--refers partly to a line by an ancient Greek poet that the English philosopher Isaiah Berlin used in his book, The Hedgehog and the Fox: "The fox knows many things, but the hedgehog knows one big thing." (243) The fox is versatile (he is able to adapt to many functions and activities), while the hedgehog is an expert (he does not know a lot but he is brilliant in what he knows). Berlin used this line to describe the difference between political monotheism and political pluralism: the adoption of a unified, consistent, and coherent system of values versus the recognition and affirmation of the diversity of values and principles. (244)
There is much to be said about this distinction and its implications about the role of the judge in the Anglo-American tradition. In a lifetime effort, Professor Ronald Dworkin, for example, has presented a comprehensive defense of the hedgehog judge, and tried to elaborate and expose the premises and arguments that a unified theory of the judge is based upon. (245) Dworkin's defense of the hedgehog judge is beyond the reach of this article. However, what is crucial to note is that Dworkin was well aware of the need to defend the hedgehog judge and what such an effort involved.
This article focused on the fiduciary theory of judging and exposed two insights. The first is that while many scholars and judges aspire to be hedgehogs, the institutional legal environment and normative culture that is in the background of the judicial activity prevents them from accomplishing this goal. A body of law--or a field of law--in the Anglo-American tradition is created by numerous decisions, judges, and courts in a gradual evolving process that lasts centuries. Furthermore, many, if not most, of our legal doctrines reflect a tension between conflicting moral and political ideals. Hence, the story of the fiduciary theory of judging--like some other overarching theories about the role of the judge--is the story about the fox that wanted to be a hedgehog.
The second conclusion is about the ways theories of judging provide a veil behind which individual rules and specific principles have been developed, changed, adopted, covered, and disguised. Professor Paul Finn cautioned about the obvious hazard of the term "fiduciary" becoming a chameleon that changes its colors in light of the changing social circumstances and needs. (246) I do not have a quarrel with the need for change and the need to accommodate modernity as part of the judge's role. The problem with Leib, Ponet, and Serota's judge-as-fiduciary model lies in ignoring, omitting, and covering up certain crucial features of fiduciary law, thus camouflaging the fox and presenting him as a hedgehog without providing sound arguments to prefer the hedgehog over the fox.
It could be helpful to think of this problem in the following way: think of a person wearing glasses with green lenses, hence believing that the whole world is green. But his green world is a factor of his glasses, not an attribute of the world. If he could have taken the glasses off, he would have immediately understood that he was wearing green-lensed glasses and the world is only partly green; but he cannot comprehend a world that is not green as long as he is wearing the glasses. However, by his reasoning he could reflect about his "natural" tools and their limitations upon which he made this "green" conclusion. This is, at least in part, the role and challenge of a theory of judging: to attempt to break free from judicial tools and limitations while acknowledging that the whole legal world around us is engraved by judicial tools and limitations. I think that the fiduciary theory of judging does not score well in this task. The principle of fiduciary 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 judicial role. The fiduciary theory of judging of Leib, Ponet, and Serota solved this problem simply by ignoring its existence, that is, by a reduction of fiduciary law in four interrelated grounds: the history of fiduciary duties, the content of duties, the remedies, and their normative foundations. The challenge of a theory of judging is to provide an explanation without losing the complexity of the judicial role--this, in turn, has the potential to subvert the unified nature of the theory. But ignoring this challenge is a complete logical failure.
Joshua Segev (*)
(*) Associate Professor, Netanya Academic College School of Law. Visiting Lecturer, the Herzog Faculty of Law Bar-Ilan University. S.J.D., University of Virginia School of Law (2003); LL.M. University of Virginia School of Law (2001); LL.B. the Buchman Faculty of Law Tel-Aviv University (1999). I would like to thank George Rutherglen, Shimon Shetreet, Gershon Gontovnik, Barak Medina, and Olga Frishman for reading and commenting on earlier versions of this Article. Thanks also to the participants at the Loyola University of Chicago's Seventh Annual Constitutional Law Colloquium and the participants of the Fifth Annual Faulkner Law Review Symposium, where earlier versions of this Article were presented.
(1) See generally AHARON BARAK, THE JUDGE IN A DEMOCRACY (2006); RONALD DWORKIN, JUSTICE IN ROBES (2006); DANIEL A. FARBER & SUZANNA SHERRY, JUDGMENT CALLS (2009); RICHARD A. POSNER, HOW JUDGES THINK (2008); H. JEFFERSON POWELL, CONSTITUTIONAL CONSCIENCE (2008); JED RUBENFELD, REVOLUTION BY JUDICIARY (2005); LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES (2004); CASS R. SUNSTEIN, ONE CASE AT A TIME (1999); Ronald Dworkin, The Judge's New Role: Should Personal Convictions Count?, 1 J. INT'L CRIM. JUST. 4 (2003).
(2) See generally EVAN FOX-DECENT, SOVEREIGNTY'S PROMISE (2011); Kathleen Clark, Do We Have Enough Ethics in Government Yet?: An Answer from Fiduciary Theory, 1996 U. ILL. L. REV. 57 (1996); Evan J. Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, 88 TEX. L. REV. 441 (2010); Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. REV. 117 (2006); Jessica Mantel, Procedural Safeguards for Agency Guidance: A Source of Legitimacy for the Administrative State, 61 ADMIN. L. REV. 343 (2009); Paul B. Miller & Andrew S. Gold, Fiduciary Governance, 57 WM. & MARY L. REV. 513 (2015); Robert G. Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 TEX. REV. L. & POL. 239 (2007); Robert G. Natelson, The Constitution and the Public Trust, 52 BUFF. L. REV. 1077 (2004); David L. Ponet & Ethan J. Leib, Fiduciary Law's Lessons for Deliberative Democracy, 91 B.U. L. REV. 1249 (2011); D. Theodore Rave, Politicians as Fiduciaries, 126 HARV. L. REV. 671 (2013). For a critique of this new trend of fiduciary government, see Seth Davis, The False Promise of Fiduciary Government, 89 NOTRE DAME L. REV. 1145 (2014).
(3) See, e.g., Sarah M.R. Cravens, Judges as Trustees: A Duty to Account and an Opportunity for Virtue, 62 WASH. & LEE L. REV. 1637 (2005); Samuel Freeman, Constitutional Democracy and the Legitimacy of Judicial Review, 9 L. & PHIL. 327, 349 (1990); Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 TEX. L. REV. 1307, 1330-1333 (1995); Dimitrios Kyritsis, Representation and Waldron's Objection to Judicial Review, 26 OXFORD J. LEGAL STUD. 733 (2006); Annette J. Scieszinski, A Matter of Trust A Judge's Fiduciary Responsibility, 49 JUDGES J. 19 (2010).
(4) See Ethan J. Leib, David L. Ponet & Michael Serota, A Fiduciary Theory of Judging, 101 CALIF. L. REV. 699 (2013).
(5) Id. at 705.
(7) Id. at 699.
(8) Id. at 705.
(10) Leib, Ponet & Serota, supra note 4, at 705-06.
(11) Id. at 706.
(16) Leib, Ponet & Serota, supra note 4, at 706.
(19) Id. at 707.
(21) Id. at 708; see also Natelson, The Constitution, supra note 2, at 1097-1101.
(22) Leib, Ponet & Serota, supra note 4, at 708-09.
(24) Id. at 709.
(26) Id. at 710
(27) Id. at 712.
(28) Leib, Ponet & Serota, supra note 4, at 712.
(30) Id. On the problems of consent theory of the state's authority, see generally A. JOHN SIMMONS, MORAL PRINCIPLES AND POLITICAL OBLIGATIONS 71-74 (1979); ROBERT PAUL WOLFF, IN DEFENSE OF ANARCHISM (1970).
(31) Leib, Ponet & Serota, supra note 4, at 712.
(33) Id. at 713.
(34) See id.
(35) Id. at 718.
(37) Leib, Ponet & Serota, supra note 4, at 718.
(39) See id. Leib, Ponet & Serota argue that "[i]t is not necessary at this juncture to specify with any precision the particular limits of the discretionary freedom judges have, nor must we enter the fray in related scholarship about whether judicial appeal to moral and social norms is actually improperly characterized as a form of discretion." Id. at 718 n.101. While this reservation--and the rejection of the "no discretion thesis" of judges--seems at first glance unproblematic, the success of the judge-as-fiduciary model partly depends on its ability to illuminate the nature and limits of judicial discretion. On the common understanding regarding the existence of wide judicial discretion, see also MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS (1982); Aharon Barak, Foreword: A Judge on Judging: The Role of the Supreme Court in A Democracy, 116 HARV. L. REV. 16, 22 (2002); Kent Greenawalt, Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind Judges, 75 COLUM. L. REV. 359 (1975). But cf. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 81 (1977); Ronald Dworkin, Judicial Discretion, 60 J. PHIL. 624,624-25(1963).
(40) Leib, Ponet & Serota, supra note 4, at 718.
(41) See id. at 750-52.
(42) Id. at 718.
(43) Id. Leib, Ponet & Serota explain that while expertise is not a required qualification of being a fiduciary, many fiduciaries, such as lawyers, doctors and corporate directors, are experts within their realm. Fiduciaries' expertise increases the monitoring costs of fiduciaries' performance by beneficiaries. Moreover, constant supervision by those who delegate judicial power over judges' decisions would harm judicial independence and objectivity, which work best when those in whose name judicial decisions are announced trust the judges to make their best. Hence, "[e]ven in jurisdictions with partisan elections for judges, no one really envisions that judges are supposed to be subject to constant monitoring on every case." Id. at 718 n.102.
(44) Id. at 718.
(45) Id. Leib, Ponet & Serota note that the trust upon the judge-as-fiduciary model is based upon "not... a psychological state or an emotion that a delegating party feels for the judge all the time. Rather, the fiduciary principle's notion of trust is a structural feature of the relationship at issue that facilitates ongoing willingness by a dependent party to abide by the fiduciary's decision. It is often that power itself, once conferred, that renders the beneficiary in a position where she needs to trust, even if she is in a psychological state of distrust." Id. at 718 n. 104.
(46) Id. at 719.
(49) See infra Part V.
(50) See Judge Richard Posner in Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 279-80 (7th Cir. 2002): "We and other Courts have gone so far as to term the district judge in the settlement phase of a class action suit a fiduciary of the class, who is subject therefore to the high duty of care that the law requires of fiduciaries." See also Susan P. Koniak & George M. Cohen, Under Clock of Settlement, 82 VA. L. REV. 1051, 1122 (1996); Judith Resnik, Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregated Litigation, 148 U. PA. L. REV. 2119, 2168 (2000).
(51) Leib, Ponet & Serota, supra note 4, at 720 ("One needs a wider net to capture all those in the polity who have delegated authority over their legal interests to judges, reposed trust in them, and now remain vulnerable to judicial action.").
(52) Cravens, supra note 3, at 1639. It should be noted that Cravens discusses the judge being trustee without explicit reference to the beneficiary of the supposed judicial entrustment: "As trustee of the law, judges have an obligation to uphold and maintain the corpus in individual cases in accordance with the underlining aims of the corpus. This also incorporates an obligation to maintain its integrity." Id. at 1639-40. "It is the judge's duty, as trustee, to maintain the integrity of the corpus of the common law, and the way to do that is to exercise judicial virtue." Id. at 1645. Cf, Scieszinski, supra note 3, at 20 ("In sum, judges act as fiduciaries of the judicial branch... It is a matter of trust: any forsaken standard of judicial diligence, by even one judge, one time, will erode the confidence of the twenty-first-century public that expect much.").
(53) Leib, Ponet & Serota, supra note 4, at 720.
(54) Id. at 720-21.
(55) See id. at 730-40.
(56) Id at 731.
(57) See id. at 732. See also MAGNA CARTA para. 29; THE FEDERALIST No. 10, at 49 (James Madison) (Ian Shapiro ed., 2009).
(58) Leib, Ponet & Serota, supra note 4, at 736.
(59) Id. at 736-37.
(60) Id. at 737.
(61) Id. 738-39.
(63) Leib, Ponet & Serota, supra note 4, at 738-39.
(64) Id. at 700.
(65) Id. at 700-01.
(66) Id at 701.
(67) Id. at 699.
(68) See id. at 714-19.
(69) Leib, Ponet & Serota, supra note 4, at 708.
(70) Id. at 709.
(71) Id. at 708. See also Natelson, The Constitution, supra note 2, at 1097-1101.
(72) PLATO, THE REPUBLIC (Benjamin Jowett trans., 2000).
(73) Id. at 282-85. See also Natelson, The Constitution, supra note 2, at 1097.
(74) PLATO, supra note 72, at 285.
(75) Id. See also Natelson, The Constitution, supra note 2, at 1097.
(76) See PLATO, supra note 72.
(78) See infra Part IV.A.
(79) Moreover, the possible linkage between the Platonic Guardians and the judge-as-fiduciary model questions their declared goals of clarifying the role of the judge and breaking new ground on fundamental inquiries regarding its responsibilities.
(80) On the philosopher-king and the role of courts and judges, see Mattias Kumm, Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review, 1 EUR. J. LEGAL STUD. 153, 163 (2007) (arguing that "constitutional judges widely cringe at the idea that they should conceive of themselves as philosopher kings, no doubt sensing their own ineptness"); John C. Eastman, Philosopher King Courts: Is the Exercise of Higher Law Authority without a Higher Law Foundation Legitimate?, 54 DRAKE L. REV. 831 (2006); Arthur S. Miller, Reason of State and the Emergent Constitution of Control, 64 MINN. L. REV. 585 (1980) ("[T]he Supreme Court can and indeed does help promulgate national goals. Acting as an 'oracle in the Marble Palace,' the Court tries to operate as modern version of Plato's Philosopher-king"); Martine Shapiro, Morality and the Politics of Judging, 63 TUL. L. REV. 1555, 1586 (1989) ("Nothing is easier for any human being than to imagine himself a moral deliberator when he is really only asserting a self-serving ideology. Among human beings none is more likely to fall into this vice than a Supreme Court justice who has just been awarded the mental and crown of philosopher king."). Robert H. Bork, Our Judicial Oligarchy, 67 FIRST THINGS 21 (1996); On the platonic "guardian" conception of democracy and its nature see ROBERT H. DAHL, DEMOCRACY AND ITS CRITICS (1989). Justin Hansford, Cause Judging, 27 GEO. J. LEGAL ETHICS 1, 25 (2014); Saikrishna B. Prakash, America's Aristocracy, 109 YALE L.J. 541, 583 (1999) (speaking about "the ever-present impulse to be a philosopher-king" of judges); LEARNED HAND, THE BILL OF RIGHTS 73 (1958) ("For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not").
(81) Idleman, supra note 3, at 1330-32 ("[T]he judge as public fiduciary may legitimately, consciously, and relatively freely make decisions for society, and our political and legal regime, in accordance with what he perceives to be the public's intermediate- and long-term best interest. This would include even choices that are not entirely in accordance with legislative will, current public sentiment, or the existing body of case law and settled principles.... The fiduciary judge is neither radical nor reckless; rather, he is consciously paternalistic--in essence, a judicial statesman.... This [the fiduciary judge] view is not uncontroversial, and the idea of judges as fiduciaries may strike some as unacceptably undemocratic.... Without a role as fiduciary in particular, the judge is simply an administrator....").
(82) Id. at note 71.
(83) This is congruent with a well-established theme that does not view democracy as the endgame of constitutional law. See also Sanford Levinson, How the United States Constitution Contributes to the Democratic Deficit in America, 55 DRAKE L. REV. 859, 861 (2007) ("Though there are good reasons to be wary of 'benevolent despotism,' that term nonetheless captures the possibility that a Platonic philosopher-king could in fact make decisions that pay full regard to one's (legitimate) needs even if there is no participation on the part of the general citizenry.... [I]t may be that a condition of living in a modern state in which decision increasing require levels of expertise unlikely to be held by more than a fraction of the society is just such an increasing sense of alienation, mixed with hope that the 'experts' know what they are doing"); John hart Ely, Another Such Victory: Constitutional Theory and Practice in a World Where Courts Are No Different from Legislatures, 77 VA. L. REV. 833, 864-65 (1991).
(84) Leib, Ponet & Serota, supra note 4, at 703 n.16, (openly rejecting Idleman's assumption about the undemocratic nature of the fiduciary judge).
(85) Id. at 704.
(86) Hence, even the supporters of a philosopher-judge cannot simply allow judges to rely upon their unconstrained moral views in adjudicating disputes or in fulfilling their responsibilities. Instead, their moral views have to be embedded in a legal and political theory that indicates when they may be invoked by the judge. See, e.g. Dworkin, The Judge's New Role, supra note 1.
(87) Leib, Ponet, and Serota, supra note 4, at 704. See also Natelson, The Constitution, supra note 2, at 1115-18; E. Mabry Rogers & Stephen B. Young, Public Office as a Public Trust: A Suggestion that Impeachment for High Crimes and Misdemeanors Implies a Fiduciary Standard, 63 GEO. L. J. 1025, 1025-27(1975).
(88) JOHN LOCKE, Two TREATISES OF GOVERNMENT (1960).
(89) See A. JOHN SIMMONS, ON THE EDGE OF ANARCHY: LOCKE, CONSENT, AND THE LIMITS OF SOCIETY 27 (1993).
(90) LOCKE, supra note 88, at 19 ("Want of a common judge with authority, puts all persons in the state of nature"; "Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature.").
(91) Id. at 13.
(92) See id. at 323-25, 352-53, 366-67. See also David Jenkins, The Lockean Constitution: Separation of Powers and the Limits of Prerogative, 56 MCGILL L. J. 543, 548(2011).
(93) Leib, Ponet & Serota, supra note 4, at 715.
(94) Jenkins, supra note 92, at 550-51.
(95) See id. at 570.
(96) Compare id. at 571 ("[W]hile Locke does not establish an independent judiciary... he nonetheless infuses his entire constitution with a judicial power,") with M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 59 (1967) (Locke "considers the main function of the [s]tate as essentially judicial,") and JEREMY WALDRON, LAW AND DISAGREEMENT (1999) (arguing that Locke's avoidance of contemplating a supreme judicial authority to review violations of natural law by the legislative authority is based on a principled position of ).
(97) Rogers & Young, supra note 87, at 1026.
(98) My discussion here follows Professor Simmons analysis of Locke's idea of trusts. SIMMONS, supra note 89, at 70-72. Some of the features of Locke's trusts, mentioned above, have been highlighted by other Lockean scholars as well. See JOHN DUNN, THE POLITICAL THOUGHT OF JOHN LOCKE 162 (1969); John Dunn, The Concept of "Trust" in the Political Thought of John Locke, in PHILOSOPHY IN HISTORY: ESSAYS IN THE HISTORIOGRAPHY OF PHILOSOPHY 296-97 (Richard Rorty, Jerome B. Schneewind & Quentin Skinner eds., 1984); WOLFGANG VON LEYDEN, HOBBES AND LOCKE 128-32 (1982).
(99) SIMMONS, supra note 89, at 71.
(100) Id. A contractually alienated right, by contrast, typically carries no specific limitations on the new right's holder use of it.
(103) Id. at 71-72 ("Trusts are revocable in a way that executed contracts are not, so that entrusted rights are not irrecoverably lost.").
(104) Id at 72.
(105) LOCKE, supra note 88, at 366-67 (emphasis added).
(106) Rogers & Young, supra note 87, at 1027.
(107) SIMMONS, supra note 89, at 72.
(108) See id; LOCKE, supra note 88, at 426-27 ("[W]ho shall be judge whether his trustee or deputy acts well, and according to the trust reposed in him, but he who deputes him, and must, by having deputed him have still a power to discard him, when he fails in his trust?"). (109) Leib, Ponet & Serota, supra note 4, at 709, 715; see also Freeman, supra note 3, at 349; Rogers & Young, supra note 87, at 1027-28; Jenkins, supra note 92, at 573.
(110) However, it is obvious that the nature of Lockean judicial impartiality is open to doubts. See John M. Kang, John Locke's Political Plan, or, There's no Such Thing as Judicial Impartiality' (And It's a Good Thing, Too), 29 VT. L. REV. 7 (2004).
(111) LOCKE, supra note 88, at 95.
(112) See A. JOHN SIMMONS, JUSTIFICATION AND LEGITIMACY: ESSAYS ON RIGHTS AND OBLIGATIONS 122, 129 (2001) (Simmons explained that, for Locke, "political power is morally legitimate... only where the subjects have freely consented to the exercise of such power and only where that power continues to be exercised within the terms of the consent given.").
(113) Rogers & Young, supra note 87, at 1026.
(114) Id; see also SIMMONS, supra note 89, at 68.
(115) Rogers & Young, supra note 87, at 1026.
(116) See generally JOHN A. SIMMONS, MORAL PRINCIPLE AND POLITICAL OBLIGATIONS (1991).
(117) See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921); Jerome Frank, Are Judges Human?, 80 U. PA. L. REV. 17 (1931); H.L.A. Hart, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 GA. L. REV. 969 (1977).
(118) Such quantitative research is beyond the reach of this article. However, a quick search in the HeinOnline search engine shows a clear increase in articles entitled "the role of the judge/court." Albert Tate Jr., Forum Juridicum: The Role of the Judge in the American Republic, 15 LA. L. REV. 386 (1956); Walter E. Hoffman, The Role of the Judge in the Adversary System, 3 Soc. R.ESP. JOURNALISM L. MED. 46 (1977); The Role of the Judge in a Democracy, 18 COMMW. L. BULL. 1256 (1992).
(119) RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGIN AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2004); ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (2000); THE GLOBAL EXPANSION OF JUDICIAL POWER (C. Neal Tate & Torbjorn Vallinder eds., N.Y. Univ. Press 1995); MARK TUSHNET, THE RIGHTS REVOLUTION IN THE TWENTIETH CENTURY (2009); Rivka Weill, Is it the Right Revolution? On Tushnet's The Rights Revolution in the Twentieth Century, 42 ISR. L. REV. 483 (2009).
(120) See BRIAN BIX, JURISPRUDENCE: THEORY AND CONTEXT 59-61 (4th ed., 2006) (discussing reduction and legal theory). Obviously, reduction is matter of degree. Some theories are characterized by radical reductionism. See, e.g., HANS KELSEN, GENERAL THEORY OF LAW AND STATE (Anders Wedberg trans., 1945); HANS KELSEN, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY (Bonnie Litchewski Paulson & Stanley L. Paulson trans., 1992); see also J. W. HARRIS, LAW AND LEGAL SCIENCE: AN INQUIRY INTO THE CONCEPTS LEGAL RULE AND LEGAL SYSTEM (1979).
(121) Some features of judicial models are more common than others, e.g. discretion, reliance on past precedents, and the incorporation of moral or political principles and convictions. See Alan R. Mabe, Toward a Critical Theory of the Role of Values in Judicial Decision Making: Dworkin and Recent Theories of Adjudication, 18 MEM. ST. U. L. REV. 25, 26-31 (1987). Some theories emphasize unusual characteristics such as magic and religion. See, e.g., Jessie Allen, A Theory of Adjudication: Law As Magic, 41 SUFFOLK U. L. REV. 773 (2008); SANFORD LEVINSON, CONSTITUTIONAL FAITH; Sanford Levinson, "The Constitution" in American Civil Religion, 1979 SUP. CT. REV. 123; Thomas C. Grey, The Constitution As Scripture, 37 STAN. L. REV. 1 (1984).
(122) DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 39, at 87; Ronald Dworkin, The Original Position, in READING RAWLS: CRITICAL STUDIES ON RAWLS' A THEORY OF JUSTICE 16 (Norman Daniels ed., 1975); see also JOHN RAWLS, JUSTICE AS FAIRNESS: RESTATEMENT 1-5 (Erin Kelly ed., 2003) (on the roles of political philosophy, which judicial philosophy can be considered a part of).
(123) See Dworkin, The Judge's New Role, supra note 1; see also the accompanying text to supra note 86.
(124) Michael Sean Quinn & H. Michelle Caldwell, The Unruly Judge, 12 REV. LITIG. 1, 15-19 (1992); see also William W. Kilgarlin & Jennifer Bruch, Disqualification and Recusal of Judges, 17 ST. MARY'S L.J. 599 (1986).
(125) Kilgarlin & Bruch, supra note 124; Quinn & Caldwell, supra note 124.
(126) For an example of the wide criticism of Supreme Court Justice Ruth Bader Ginsburg for a series of interviews in which she criticized Donald Trump, see Michael D. Shear, Ruth Bader Ginsburg Expresses Regret for Criticizing Donald Trump, N.Y. TIMES (July 14, 2016), https://www.nytimes.com/2016/07/15/us/politics/ruth-bader-ginsburg-donald-trump.html?_r=0.
(127) See Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89 CALIF. L. REV. 1721 (2001); Richard Posner, The Supreme Court, 2004 Term--Foreword A Political Court, 119 HARV. L. REV. 32 (2005).
(128) Baker v. Carr, 369 U.S. 186, 210-15 (1962).
(129) See Jesse H. Choper, The Political Question Doctrine: Suggested Criteria, 54 DUKE L.J. 1457 (2005).
(130) Elad Gil, Judicial Answer to Political Question: The Political Question Doctrine in the United States and Israel, 23 B.U. PUB. INT'L. L.J. 245 (2014).
(131) Leib, Ponet & Serota, supra note 4, at 706.
(132) See Deborah A. DeMott, Beyond Metaphor: An Analysis of Fiduciary Obligation, 37 DUKE L.J. 879, 915 (1988) ("[T]he fiduciary obligation is a device that enables the law to respond to a range of situations in which, for a variety of reasons, one person's discretion ought to be controlled because of characteristics of that person's relationship with another.").
(133) See Or Bassok, The Supreme Court at the Bar of Public Opinion Polls, 23 CONSTELLATIONS 573 (2016); http://onlinelibrary.wiley.com/doi/10.1111/1467-8675.2016.23.issue-4/issuetoc cf S. KAY, CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 16, 18 (Larry Alexander ed., 1998) (discussing the development of Locke's theory of the social compact).
(134) Equity is a system of rules, principles, and doctrines supplementing ordinary common law, which was developed mainly to mitigate and ameliorate the application and enforcement of the common rigid legal rules. See JOHN H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY, ch. 6 (4th ed., 2002).
(135) SIMON GARDNER, AN INTRODUCTION TO THE LAW OF TRUSTS 18-25 (3rd ed., 2011); L.S. Sealy, Fiduciary Relationships, 20 CAMBRIDGE L.J. 69 (1962). See also DeMott, supra note 132, at 880-82.
(136) DeMott, supra note 132, at 880; Sealy, supra note 135.
(137) Sealy, supra note 135.
(138) JOHN SELDON, THE TABLE-TALK OF JOHN SELDEN 49 (2nd ed., London, John Russell Smith 1856) ("Equity is a roguish thing. For Law we have a measure, and know what to trust to; Equity is according to the Conscience of him that is Chancellor, and, as that is larger or narrower, so is Equity. 'Tis all one as if they should make the Standard for the measure, we call a Foot, a Chancellor's Foot; what an uncertain Measure would this be. One Chancellor has a long Foot, another a short Foot, a Third an indifferent Foot: Tis the same thing in the Chancellor's Conscience."). Over the years, Seldon's critique of Equity and its metaphor expression have contributed to the development of Equity, by encouraging the framing of a more clear and defined set of rules and doctrines. See WILLIAM HOLDSWORHT, SOME MAKERS OF ENGLISH LAW 198 (1938); T.M.C., The Length of the Chancellor's Foot, 45 JURID. REV. 145 (1933); Max Radin, The Chancellor's Foot, 49 HARV. L. REV. 44 (1935); Oliver S. Rundell, The Chancellor's Foot: The Nature of Equity, 27 U. KAN. CITY L. REV. 71 (1958).
(139) It is worth noting that Seldon's critique of Equity was used by modern American scholars to critique American jurisprudence about constructive trust. See H. Jefferson Powell, "Cardozo's Foot": The Chancellor's Conscience and Constructive Trusts, 56 L. & CONTEMP. PROBS., (Summer) 7 (1993).
(140) Sealy, supra note 135, at 70-71.
(141) Id. at 71.
(143) DeMott, supra note 132, at 880; Sealy, supra note 135, at 72.
(144) Sealy, supra note 135, at 72-73.
(145) This reflects a wide descriptive consensus among leading commentators on the casuistic nature of fiduciary duties. Peter Birks, The Content of Fiduciary Obligation, 34 ISR. L. REV. 3, 8 (2003) ("'[F]iduciary is one those words which means what it does, and what it does is to form a bridge from the express trust to other analogous situations. But the basis of the analogy is not spelled out and not stable. The word is thus a vehicle for the extension of incidents of the express trust to trust-like situations."); DeMott, supra note 132, at 879; ("Recognition that the law of fiduciary obligation is situation-specific should be the starting point for any further analysis. Because of the wide range of situations the obligation may arise, the law of fiduciary obligation has developed through analogy to contexts in which the obligation conventionally applies."); Tamar Frankel, Fiduciary Law, 71 CALIF. L. REV. 795, 804 (1983) ("Courts currently examine existing prototypes, such as agency, trust, or bailment that are defined as fiduciary. Then, courts create rules for new fiduciary relations by drawing analogies with these prototypes."); D. Gordon Smith, The Critical Resource Theory of Fiduciary Duty, 55 VAND. L. REV. 1399, 1400 (2002) ("Courts routinely impose fiduciary duties in myriad relationships.... In each of these relationships, courts require fiduciaries to adhere to a general obligation of loyalty, but countless variations on that theme tailor the general obligation to the specific context.").
(146) Frankel, Fiduciary Law, supra note 145, at 804.
(147) DeMott, supra note 132, at 891 ("Courts considering whether to impose a fiduciary constraint in a novel context rely heavily on comparisons to more conventional contexts in which the constraint does apply. Although some commentators find this pattern intellectually unsatisfying, its pervasiveness and persistence suggests that it is an inevitable aspect of fiduciary analysis."). Others are highly critical of this casuistic method and offer theories that overcome this situation-specificity. See, e.g., Birks, supra note 145, at 17-21; Frankel, Fiduciary Law, supra note 145, at 804; Smith, supra note 145, at 1400.
(148) See SUNSTEIN, supra note 1.
(149) See Dworkin, The Judge's New Role, supra note 1.
(150) See PAUL D. FINN, FIDUCIARY OBLIGATIONS 4 (1977); DeMott, supra note 132, at 915 ("One could justifiably conclude that the law of fiduciary obligation is in significant respect atomistic."); Sealy, supra note 135, at 73 ("The word fiduciary... is not definitive of a single class of relationships to which a fixed set of rules and principle apply.").
(151) Birks, supra note 145, at 11.
(152) See FINN, supra note 150, at 1 ("[T]he term 'fiduciary' is itself one of the most ill-defined, if not altogether misleading term in our law."); Paul B. Miller, Justifying Fiduciary Duties, 58 McGILL L.J. 969, 975 (2013) ("There is significant disagreement on aspects of the juridical character of fiduciary liability."); Julian Velasco, How Many Fiduciary Duties are there in Corporate Law?. 83 S. CAL. L. REV. 1231 (2010); Larry E. Ribstein, Fencing Fiduciary Duties, 91 B.U. L. REV. 899 (2011).
(153) Miller, supra note 152, at 973.
(154) Id. at 972.
(155) Id. at 977.
(156) While every public official is subject to the duty of loyalty, its stringency shifts according to the purpose, scope and nature of authority delegated.
(157) See Micah Schwartzman, Judicial Sincerity, 94 VA. L. REV. 987 (2008); J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 HARV. L. REV. 769, 797 (1971) ("The ultimate test of the Justices' work, I suggest, must be goodness.... ").
(158) See ROBERTO UNGER, KNOWLEDGE AND POLITICS 241 (1975) ("[A]ll the many attempts to build a moral and political doctrine upon the conception of a universal human nature have failed. They are repeatedly trapped in a dilemma. Either the allegedly universal ends are too few and abstract to give content to the idea of the good, or they are too numerous and concrete to be truly universal. One has to choose between triviality and implausibility.").
(159) See, Robin L. West, In the Interest of the Governed: A Utilitarian Justification for Substantive Judicial Review, 18 GA. L. REV. 469 (1984).
(160) For centuries, political philosophy--the study of the common good--was linked to moral philosophy--the study of the good life of the individual person. In accord, political philosophy was a sub-division of moral philosophy and political institutions, including the state constitution, were founded on a specific comprehensive conception of the good and were designed to realize it. See JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLE OF MORALS AND LEGISLATION 11-16, 38-41 (1948); IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE (John Ladd trans., New York, 1965); LOCKE, supra note 88; JOHN STUART MILL, UTILITARIANISM (2d ed., George Sher ed., 2001); PLATO, supra note 72. One of John Rawls' most known contribution to political writing is his attempt to detach political philosophy from moral philosophy by adopting the two principles of justice for a well-ordered society independently of moral principles. See JOHN RAWLS, A THEORY OF JUSTICE (rev. ed., 1999). For an early critique of Rawls see MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 15-65 (2d ed., 1998).
(161) 2 CHARLES TAYLOR, PHILOSOPHY AND THE HUMAN SCIENCES, PHILOSOPHICAL PAPERS 15-91 (1985).
(162) Barak, Foreword, supra note 39, at 40 ("[W]hat is good and proper for the United Kingdom--which, in any case, is subject to the jurisdiction of the European Convention on Human Rights--is not necessarily good and proper for other countries, like Israel. Therefore, while a written constitution and judicial review are not necessary conditions for the existence of democracy, they are important conditions that should be preferred.").
(163) Miller, supra note 152, at 977 ("While... there is some disagreement over its content. It is widely accepted that the duty of loyalty prohibits fiduciaries from acting under conflicts of interest.").
(165) Marbury v. Madison, 5 U.S. 137 (1803). For a recent and insightful discussion, compare Larry Alexander, Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy, 20 CONST. COMMENT. 369 (2003), with CA 6821/93 United Mizrahi Bank v. Migdal Communal Village 49(4) PD 221 (1995) (Isr.) (Israeli case on Judicial Supremacy). For the complexity of the arguments that can be used to justify the judge's role striking down legislation that violated the constitution, see Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006). On the different methodologies used by the Israeli Supreme Court to justify judicial review over the past 50 years, see Joshua Segev, Justifying Judicial Review: On the Changing Methodology of the Israeli Supreme Court, in ISRAEL'S CONSTITUTIONAL LAW IN THE MAKING ch. 8 (Gideon Sapir, Daphene Barak-Erez & Aharon Barak eds., 2014).
(166) See Matthew Conaglen, Fiduciary Regulation of Conflicts Between Duties, 125 L. Q. REV. 111 (2009); Steven L. Schwarcz, Fiduciaries with Conflicting Obligations, 94 MINN. L. REV. 1867 (2010).
(167) See the accompanying text to supra notes 32-33.
(168) See Mark V. Tushnet, Defending the Indeterminacy Thesis, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY 223 (Brian Bix ed., Oxford, 1998). I do not argue that these questions or conflicts always have no right answer, thus adopting a radical thesis of legal indeterminacy. My claim is that in many cases the solutions of the law of fiduciary to these conflicts are related to the specific relationships and circumstances of the parties before the court. By adopting an abstract standard of behavior, the judge-as-fiduciary model omits the specific consideration that guided courts in the imposition of fiduciary duties and their application. In the absence of these consideration, not only does the judge-as-fiduciary model fail to provide guidance to the judge how to discharge his duties, it also misses an opportunity to provide a deeper explanation on how the judge's discretion ought to be controlled.
(159) MATTHEW CONAGLEN, FIDUCIARY LOYALTY: PROTECTING THE DUE PERFORMANCE OF NON-FIDUCIARY DUTIES 35-39 (2011); William A. Gregory, The Fiduciary Duty of Care: A Perversion of Words, 38 AKRON L. REV. 181 (2005); Miller, supra note 152, at 976.
(170) See ROBERT CHARLES CLARK, CORPORATE LAW 123-36 (1986); Joshua Getzler, Duty of Care, in BREACH OF TRUST 41 (Peter Birks & Arianna Pretto eds., 2002).
(171) See Velasco, supra note 152, at 1238.
(173) Ethan J. Leib, Friends as Fiduciaries, 86 WASH. U. L. REV. 665, 675-78; DeMott, supra note 132, at 882; Scott FitzGibbon, Fiduciary Relationships Are Not Contracts, 82 MARQ. L. REV. 303, 308 (1999).
(174) Compare Miller, supra note 152 at 979-80, with Velasco, supra note 152, at 1234, 1301-02.
(175) DeMott, supra note 132, at 882; FitzGibbon, supra note 173, at 308-09; Frankel, Fiduciary Law, supra note 145, at 814; Leib, supra note 173, at 675. For landmark cases about the duty to disclose complete and accurate information, see Jordan v. Duffs & Phelps, Inc., 815 F.2d 429, 435-36 (7th Cir. 1987); Libby v. L.J. Corp., 247 F.2d 78, 81 (D.C. Cir. 1957); Wendt v. Fischer, 154 N.E. 303, 304 (N.Y. 1926).
(176) DeMott, supra note 132, at 882; FitzGibbon, supra note 173, at 308; Frankel, Fiduciary Law, supra note 145, at 814; Leib, supra note 173, at 675. See Jordan, 815 F.2d at 435-36; Libby, 247 F.2d at 81; Wendt, 154 N.E. at 304.
(177) DWORKIN, JUSTICE IN ROBES, supra note 1, at 202-03; BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 311 (New Haven, 1980) ("The task of the supreme court... is to assure the liberal quality of each outcome... by exposing it to a final test of legitimacy.... The mere grant of such a judicial power is an act of high symbolic import. It not only vindicates the challenger's standing as a citizen of a liberal state, whose questions must be taken seriously; it also expresses his fundamental right to a liberal answer....").
(178) SUNSTEIN, supra note 1, at 9-10. However, one should note the following clarification made by Sunstein in respect to the relativity of this formal feature. See id. at 14 ("Reasons are by their nature abstractions. Any reason is, by its nature, more abstract than the case for which it is designed. Any reason, if it is binding, will extend beyond that case.").
(179) Leib, Ponet & Serota, supra note 4, at 728-29.
(180) Id. at 728.
(182) Id. at 729.
(185) Leib, Ponet & Serota, supra note 4, at 729-30.
(186) Id. at 708; Miller, supra note 152, at 1004.
(187) Leib, supra note 173, at 678.
(189) Edgar Hammond, Forms of Action in Our Legal History, 1 LAW COACH 82 (Cambridge, 1920).
(190) Ubi jus ibi remedium, BLACK'S LAW DICTIONARY (9th ed. 2009).
(191) David Campbell & Philip Wylie, Ain't No Telling (Which Circumstances Are Exceptional), 62 CAMBRIDGE L.J. 605, 619 (2003).
(192) 3 WILLIAM BLACKSTONE, COMMENTARIES *23. And indeed, in private law, rights and remedies are almost inseparable from a functional perspective. See Yehuda Adar & Gabriela Shalev, The Law of Remedies in a Mixed Jurisdiction: The Israeli Experience, 23 TUL. EUR. & CIV. L.F. 111 (2008); Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); Charles A. Wright, The Law of Remedies as a Social Institution, 18 U. DET. L.J. 376 (1955); see also Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897).
(193) Leib, Ponet & Serota, supra note 4, at 728 (discussing remedies, under the heading, "Do We Need Juridical Accountability for Fiduciaries?"). Hence, I believe that they do not totally reject changes in the absolute immunity that is given to judges, but rather take it into account as a descriptive matter of what the law is, not as a normative matter of what the law should be.
(194) John T. Gaubatz, Grantor Enforcement of Trusts: Standing in One Private Law Setting, 62 N.C. L. REV. 905, 905 (1984).
(195) See Barak, Foreword, supra note 39, at 107 ("How a judge applies the rules of standing is a litmus test for determining his approach to his judicial role.").
(197) An improper use of, or refusal to use, these powers of impeachment, for example, could be petitioned to the court, which would force the fiduciary judge to take a stand in regard to the standing of the petitioner.
(198) Victor Brudney, Contract and Fiduciary Duty in Corporate Law, 38 B. C. L. REV. 595, 602-03 (1997); Robert Cooter & Bradley Freedman, The Fiduciary Relationship: Its Economic Character and Legal Consequences, 66 N.Y.U. L. REV. 1045, 1069-75 (1991); Leib, supra note 173, at 678; Miller, supra note 152, at 1004; see also Deborah A. DeMott, Disloyal Agents, 58 ALA. L. REV. 1049 (2007).
(199) Cooter & Freedman, supra note 198 at 1069-75.
(200) Leib, supra note 173, at 678.
(201) Ronald Dworkin, Rights as Trumps, in THEORIES OF RIGHTS 153, 154 (Jeremy Waldron ed., 1984).
(202) About the nature of disputes about remedies in civil rights cases, see Frank H. Easterbrook, Civil Rights and Remedies, 14 HARV. J.L. & PUB. POL'Y 103, 103 (1991); Owen M. Fiss, The Supreme Court, 1978 Term--Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 46 (1979); Paul Gewirtz, Remedies and Resistance, 92 YALE L.J. 585, 593 (1983); Tracy A. Thomas, Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy, 41 SAN DIEGO L. REV. 1633, 1634(2004).
(203) Leib, Ponet & Serota, supra note 4, at 707.
(204) Frankel, Fiduciary Law, supra note 145, at 796, 804; Miller, supra note 152, at 972; see also Tamar Frankel, Toward Universal Fiduciary Principles, 39 QUEEN'S L.J. 391 (2014).
(205) Frankel, Fiduciary Law, supra note 145, at 796.
(206) FINN, supra note 150, at 1 ("[F]iduciary... is not definitive of a single class of relationships to which fixed rules and principles apply. Rather its use has generally been descriptive, providing a veil behind which individual rules and principles have been developed. This conclusion--an incontestable one--is the starting point of this work."). Cf. PAUL FINN, The Fiduciary Principle, in EQUITY, FIDUCIARIES AND TRUSTS, 1, 26-27 (T. G. Youran ed., 1989).
(207) See James Edelman, When Do Fiduciary Duties Arise?, 126 LAW Q. REV. 302 (2010).
(208) See Michael Bryan, Parents as Fiduciaries: A Special Place in Equity, 3 INT'L. J. CHILD RTS. 227, 228 (1995); Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 VA. L. REV. 2401, 2404 (1995).
(209) Austin Scott, The Fiduciary Principle, 37 CALIF. L. REV. 539, 540 (1949); see also, Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928) ("A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior."); JOSIAH ROYCE, THE PHILOSOPHY OF LOYALTY 16 (Vanderbilt University Press, 1995).
(210) Frankel, Toward Universal Fiduciary Principles, supra note 204, at 419, 437.
(211) Frank H. Easterbrook & Daniel R. Fischel, Contract and Fiduciary Duty, 36 J.L. & ECON. 425, 441 (1993). Their argument has been examined and critique by many, see Gregory S. Alexander, A Cognitive Theory of Fiduciary Relationships, 85 CORNELL L. REV. 767, 767 (2000). Tamar Frankel, Fiduciary Duties as Default Rules, 74 OR. L. REV. 1209, 1209 (1995); See also, Melvin A. Eisenberg, Corporate Law and Social Norms, 99 COLUM. L. REV. 1253 (1999).
(212) Lawrence E. Mitchell, The Naked Emperor: A Corporate Lawyer Looks at RUPA 's Fiduciary Provisions, 54 WASH. & LEE L. REV. 465, 480 (1997).
(213) See 28 U.S.C. [section] 453 (2000).
(214) Leib, Ponet & Serota, supra note 4, at 707.
(215) Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 85-86 (1943).
(216) Frank H. Easterbrook, The Supreme Court 1983 Term--Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1984) (Adopting the agent-principle paradigm of fiduciary relationships does not necessarily commit to the conclusion that judges are agents of the political branches.). See Tracy E. George & Albert H. Yoon, The Federal Court System: A Principle-Agent Perspective, 47 ST. LOUIS U. L. J. 819 (2003); Donald R. Songer et al., The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court--Circuit Court Interactions, 38 AM. J. POL. SCI. 673 (1994). For critiques of the claim that judicial hierarchy is explained by principle-agent relationships, see Pauline T. Kim, Beyond Principle-Agent Theories: Law and the Judicial Hierarchy, 105 Nw. U. L. REV. 535 (2011); Jonathan Remy Nash & Rafael I. Pardo, Rethinking the Principle-Agent Theory of Judging, 99 IOWA L. REV. 331 (2013).
(217) See Leona Beane, The Fiduciary Relationship of a Partner, 5 J. CORP. L 483 (1980).
(218) Barak, Foreword, supra note 39, at 26. See also RONALD DWORKIN, LAW'S EMPIRE 313 (1986) ("[Judge Hercules] will treat Congress as an author... with special powers and responsibilities different from his own, and he will see his own role as fundamentally the creative one of a partner continuing to develop, in what he believes is the best way, the statutory scheme Congress began.").
(219) See Leib, Ponet & Serota, supra note 4, at 720, 721.
(221) See Sujata Gadkar-Wilox, Discourse, Power, and Free Exercise: Jurisprudence, 12 DARTMOUTH L.J. (Fall) 138, 144 (2014).
(222) Notice, for example, that Judge Easterbrook writes about the need to reduce the costs of implementing laws, which could be classified under the universalist account. Easterbrook, The Court and the Economic System, supra note 216, at 60.
(223) See Barak, Foreword, supra note 39, at 34.
(224) See Leib, Ponet & Serota, supra note 4, at 744-52.
(225) See DeMott, supra note 132, at 880, 891. See also DWORKIN, JUSTICE IN ROBES, supra note I; SUNSTEIN, supra note 1; Birks, supra note 145, at 11; Miller, supra note 152, at 975.
(226) Leib, Ponet & Serota, supra note 4, at 702 (Leib, Ponet & Serota make this passing comment in the beginning of their article, but fail to see how the fiduciary theory of judging demonstrates the difficulty of introducing a unified theory of the judge.).
(227) Id. at 720-21.
(228) LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE 5-10 (2004). See Robert M. Cover, The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role, 20 GA. L. REV. 815 (1986) (Professor Cover argued that judges are part of a collective violent cooperation.).
(229) Robert M. Cover, Violence and the Word, 95 YALE L. J. 1601, 1620 (1986).
(230) Leib, Ponet & Serota, supra note 4, at 742. See also Olga Frishman, Court-Audience Relationships in the 21st Century, MISSISSIPPI L. J. Forthcoming (2016); Abner J. Mikva, For Whom Judges Write, 61 S. CAL. L. REV. 1357 (1988).
(231) Leib, Ponet & Serota, supra note 4, at 744.
(233) See Leib Ponet & Serota, supra note 4, at 713, 718.
(234) Id. at 748.
(235) Id. at 748 n.248.
(236) Cover, Violence and the Word, supra note 229 at 1623-24.
(237) See sources cited in supra note 2.
(238) Frankel, Fiduciary Law, supra note 145, at 797.
(239) Id. at 798.
(240) See Chad M. Oldfather, Judging, Expertise, and the Rule of Law, 89 WASH. U.L. REV. 847(2012).
(241) See J. M. Balkin, Taking Ideology Seriously: Ronald Dworkin and the CLS Critique, 55 UMKC L. REV. 392 (1987).
(242) See Roy Kreitner, On the New Pluralism in Contract Theory, 45 SUFFOLK U. L. REV. 915(2012).
(243) ISAIAH BERLIN, THE HEDGEHOG AND THE Fox 1 (1953).
(245) RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (2011).
(246) See FINN, The Fiduciary Principle, supra note 206, at 26.
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|Title Annotation:||Symposium: The Role of the Judge in the Anglo-American Tradition|
|Publication:||Faulkner Law Review|
|Date:||Sep 22, 2016|
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