David Ponet, Michael Serota, and I have uploaded “A Fiduciary Theory of Judging” to SSRN here. It is forthcoming in the California Law Review in 2013. Here is the abstract:
For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. How do we reconcile the call of judicial independence — a function of a judge’s obligation to uphold the rule of law — with that of judicial responsiveness — the obligation that, as a branch of government in a democratic polity, judges must ensure that the law not derogate too far from the will of the people? This paper reveals how the law governing fiduciary relationships sheds new light on this age-old quandary, and therefore, on the very nature of the judicial office itself. In so doing, the paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insight into what it means to be a judge in a democracy, while providing practical guidance in resolving a range of controversial and hotly contested legal issues surrounding judicial performance, such as judicial ethics at the Supreme Court, campaign contributions in state judicial elections, and the role of public opinion in constitutional interpretation.
This paper is an outgrowth of my prior work on the fiduciary foundations of public law here and here. This version of “A Fiduciary Theory of Judging” would not have been possible without the careful reading and analysis by our own Paul Horwitz. And much of this rendering of public authority in fiduciary terms is inspired by the path-breaking work of Evan Criddle and Evan Fox-Decent. Here are links to some of their most provocative work in this vein.
Posted by Ethan Leib on March 26, 2012 at 05:02 PM