Translating Fiduciary Principles into Public Law

Abstract

Because public office is a public trust, fiduciary architecture can help orient us in figuring out how political power should be exercised legitimately. Part of the appeal of conceiving the political relationship between representative and represented in fiduciary terms is that it regards politics in more realistic and textured ways — as a constellation of power relationships in a web of trust and vulnerability — rather than as a mere social contract no one ever signed. Thinking of legislators as public fiduciaries tells us much about the nature of the relationship between the governed and their governors and it can also provide some normative benchmarks for evaluating the political morality of elected representatives and for designing the institutions that channel and control their conduct.

The essay develops two points. Part I elaborates upon some of the messiness associated with identifying relevant fiduciaries and beneficiaries in the political sphere; and Part II interrogates whether judicial remedies are appropriately calibrated to generate the trust necessary for public fiduciary relationships to function well.