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A Fiduciary Theory of Judging

56 Pages Posted: 27 Mar 2012 Last revised: 6 Jun 2013

Ethan J. Leib

Fordham University School of Law

David L. Ponet

United Nations

Michael Serota

Independent

Date Written: March 26, 2012

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.

Keywords: judging, fiduciary foundation of public authority, judicial elections, judicial independence, popular constitutionalism, statutory interpretation

Suggested Citation

Leib, Ethan J. and Ponet, David L. and Serota, Michael, A Fiduciary Theory of Judging (March 26, 2012). California Law Review, Vol. 101, 2013, Forthcoming; Fordham Law Legal Studies Research Paper No. 2029001. Available at SSRN: https://ssrn.com/abstract=2029001

Ethan J. Leib (Contact Author)

Fordham University School of Law ( email )

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

David L. Ponet

United Nations ( email )

New York, NY 10017
United States

Michael Eli Serota

Independent ( email )

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