The Core of Fiduciary Political Theory

Research Handbook of Fiduciary Law (D. Gordon Smith & Andrew Gold eds., 2018)

Fordham Law Legal Studies Research Paper

17 Pages Posted: 13 Jun 2018

See all articles by Stephen Galoob

Stephen Galoob

University of Tulsa College of Law

Ethan J. Leib

Fordham University School of Law

Date Written: May 28, 2018

Abstract

“Fiduciary political theory” applies norms developed within fiduciary law to public officials and political institutions. Fiduciary political theorists contend that these fiduciary norms describe or, at least, offer insights into the political authority of states and other major questions of political morality. However, many fiduciary political theorists disagree about methodology—specifically, how directly to apply fiduciary norms to the realm of politics.

This chapter has two goals. The first goal is to describe the core of fiduciary political theory by identifying features of fiduciary norms (some more familiar than others) that apply in both private law and political contexts. Part I sketches these features, illustrating them by reference to several recent cases in the United States.

The second goal is to show that these core features of fiduciary norms can transcend methodological disagreements among fiduciary political theorists. In Part II, we briefly describe these disagreements, contending that they threaten to distract attention from the substantial common ground among different fiduciary political theories. Our analysis, if correct, provides a framework for analyzing the actions of political officials and the structure of political institutions, regardless of how literally one thinks that fiduciary norms do (or should) apply to the political realm. Bracketing these methodological disagreements provides firmer ground for developing the most distinctive and powerful aspects of fiduciary political theory as an intellectual enterprise.

Keywords: Fiduciary Law, Fiduciary Political Theory, Cognitivism, Evan Fox-Decent

Suggested Citation

Galoob, Stephen and Leib, Ethan J., The Core of Fiduciary Political Theory (May 28, 2018). Research Handbook of Fiduciary Law (D. Gordon Smith & Andrew Gold eds., 2018); Fordham Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3186248

Stephen Galoob (Contact Author)

University of Tulsa College of Law ( email )

3120 E. Fourth Place
Tulsa, OK 74104
United States

Ethan J. Leib

Fordham University School of Law ( email )

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

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