47 Pages Posted: 8 May 2012
Date Written: May 8, 2012
This article demonstrates how employees’ widely recognized status as fiduciaries provides a substantive standard for evaluating whether particular government ethics restrictions are appropriate. As a theoretical matter, the fiduciary obligation embodies those principles that government ethics regulation ought to express. As a practical matter, it incorporates the flexibility that ethics regulation requires.
Part I shows how government ethics regulation has evolved into a set of complicated rules. Part II argues that fiduciary theory provides a principled basis for evaluating those rules. Part III proposes a methodology, based on the fiduciary principle, for determining the appropriateness of a particular set of ethics regulations. Part IV then applies this methodology to analyze four areas of ethics regulation for government employees: their acceptance of gifts; their own personal financial interests and investments; their receipt of compensation for nonexpressive activity; and their receipt of compensation for expressive activity. Using this fiduciary standard, the article concludes that many executive branch restrictions are too strict, while many congressional ethic restrictions have been, until very recently, too lax.
Keywords: Government ethics, fiduciary theory
Suggested Citation: Suggested Citation
Clark, Kathleen, Do We Have Enough Ethics in Government Yet?: An Answer from Fiduciary Theory (May 8, 2012). University of Illinois Law Review, Vol. 1996, No. 57; Washington University in St. Louis Legal Studies Research Paper No. 12-04-06. Available at SSRN: https://ssrn.com/abstract=2054648