Fiduciary Law's Lessons for Deliberative Democracy

13 Pages Posted: 9 Apr 2011 Last revised: 3 May 2011

See all articles by David L. Ponet

David L. Ponet

United Nations

Ethan J. Leib

Fordham University School of Law

Date Written: April 8, 2011

Abstract

Deliberative democrats have expended most of their efforts mapping what deliberation should look like at two different levels of decision-making: the deliberation among citizens themselves in exercises of direct and participatory democracy – and the deliberation among legislators or other official actors within the organs of state government. Although it is likely the case that most deliberative democrats would see an important role for deliberation as between legislator and citizen, this deliberative space is underexplored. It is easy to understand why this would be so: deliberative democrats usually require that deliberation take place among free and equals, and there is a very real sense in which legislators who deliberate with their constituents do so from a position of political superiority and expertise. In the Essay that follows, we suggest that features of fiduciary law usefully model how deliberation can be understood between political unequals, in particular when the individual with more political power is supposed to be holding the interests of the individual with less power in trust. If our elected political leaders are, after all, our public fiduciaries, they may be bound by fiduciary duties that underwrite a dialogic imperative with their constituents. Yet, most essentially, fiduciary law’s lesson for deliberative democracy is that a specialized kind of deliberation is possible and desirable between unequals, between fiduciary and beneficiary.

Keywords: Deliberative Democracy, fiduciary law, political representation, civil society, Habermas, Ackerman

Suggested Citation

Ponet, David L. and Leib, Ethan J., Fiduciary Law's Lessons for Deliberative Democracy (April 8, 2011). Boston University Law Review, Vol. 91, p. 1207, 2011. Available at SSRN: https://ssrn.com/abstract=1805766

David L. Ponet

United Nations ( email )

New York, NY 10017
United States

Ethan J. Leib (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

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