The (Unified?) Fiduciary Theory of Judging: Hedgehogs, Foxes and Chameleons

Abstract

There has been a resurgence of interest in constitutional theories about the role of the judge in the Anglo-American tradition in recent years. Another recurrent theme in contemporary American constitutional writing is the construction of fiduciary theories of government to limit and guide public officials’ discretion. Hence, the emergence of a unified fiduciary theory of judging—able to account for the responsibilities judges possess and the nature of the judicial office itself—was almost inevitable. After several initial and immature attempts to develop the theory, mostly as an inspiring metaphor, Ethan J. Leib, David L. Ponet, and Michael Serota have presented the most direct and well-developed judge-as-fiduciary model. According to their model, the judge is a fiduciary since he is empowered over the assets and legal interests of the public.

This article examines the judge-as-fiduciary model, and explores the ways it resolves disagreements about the role of the judge in the Anglo-American tradition. The judge-as-fiduciary model is rooted in private English and American law. “A fiduciary relationship emerges in contexts where one person (the fiduciary) has discretionary power over the assets or legal interests of another (the beneficiary).” In these settings, private law traditionally imposes substantial duties (duty of loyalty, duty of care, and duties of candor, disclosure, and accounting) upon fiduciaries, incentivizing them to prioritize their beneficiaries’ interests above their own.

Leib, Ponet, and Serota argue that their judge-as-fiduciary model “offers important insights into what it means to be a judge in [the Anglo-American tradition], while providing practical guidance in resolving a range of controversial constitutional . . . issues surrounding judicial [performance] . . . .” This article argues that, notwithstanding shedding light on some important features of judging in the Anglo-American tradition (i.e., discretion, public trust, and vulnerability), the judge-as-fiduciary model fails to provide a convincing unified theory of the judicial role, which puts into question its attractiveness in resolving current disagreements. The reasons for this failure lie in the reductionist nature of the judge-as-fiduciary model of Leib, Ponet, and Serota. Reducing the private fiduciary principle to a unified system of duties and goals provides a unified theory of the role of the judge in modern democracies.

This article will revisit the private fiduciary principle, focusing on other characteristics of the principle, and will enrich it by our understanding of the judicial role. That goal is achieved by reviewing the methods by which fiduciary duties have been developed over time in the Anglo-American jurisprudence, the different kinds of fiduciaries acknowledged by courts (i.e. principle, trustee, guardian), and the plurality of justifications used to account for fiduciary duties and remedies. However, this “new” fiduciary principle will question the soundness of creating a unified constitutional theory of “the Anglo-American judge” as fiduciary. The article concludes with remarks about the constitutional theory’s inability to break free from judicial tools and limitations: The fiduciary principle in private law is a judicial product, hence it is engraved by the same problems, controversies, and dilemmas that characterize the constitutional law debates regarding the judge’s role.

Keywords: fiduciary, judging, unity, hedgehog, fox