The False Promise of Fiduciary Government

ABSTRACT This Article critiques the borrowing of private law concepts to develop doctrines of judicial review in public law. A rising chorus of scholars has argued for a fiduciary theory of government designed to constrain political discretion through judicial review based upon the model of private fiduciary duties. Treating politicians and bureaucrats as fiduciaries, they argue, promises a workable judicial solution to the problem of faction in legislative and administrative decision-making. This Article argues the promise of fiduciary government is a false one. There are problems of fit, intent, and function with fiduciary government. Politicians and bureaucrats are not like private fiduciaries because they do not serve discrete classes of beneficiaries and are not subject to demands that can be distilled into a discrete maximand. Fiduciary government, cannot be founded in the intent of the Founders or of Congress. Moreover, fiduciary government has not functioned well where courts have experimented with it. Either the analogy to fiduciary law operates at such a high level of generality that it simply restates public law problems in different terms, or it imports freestanding fiduciary principles that yield unworkable constraints on political decisionmaking. The failure of fiduciary government is instructive, however, on the promises and potential pitfalls of translating between public and private law. INTRODUCTION I. THE THEORY OF FIDUCIARY GOVERNMENT II. THE PROBLEM OF FIT A. The Many Faces of Fiduciary Law B. Public Officials as Parents C. Public Officials as Trustees D. Public Officials as Corporate Managers E. The Decline of Fiduciary Law? F. Public Fiduciaries as a Sui Generis Category III. THE PROBLEM OF INTENT A. Constitutional Law as Fiduciary Law B. The Fiduciary Account of Administrative Law IV. THE PROBLEM OF FUNCTION A. Narrow Public Fiduciary Constraints 1. Political Corruption and the Honest Services Statute 2. Insider Trading and the STOCK Act B. Broad Fiduciary Government 1. The Federal Indian Trust Doctrine 2. The Public Trust Doctrine 3. The First Amendment Public Forum V. THE PROBLEMS WITH THREE PROPOSED FIDUCIARY REFORMS. A. Imposing the Duty of Care on Congress B. Judicial Review of Political Gerrymandering C. Hardening Hard Look Review of Agency Action VI. THE PROBLEM OF TRANSLATING BETWEEN PUBLIC AND PRIVATE LAW A. The Interdependence of Justiciability, Rights, and Remedies B. The Importance of Mediating Principles C. Connecting Values Across Doctrinal Areas D. The Possibility of Creative Restatement CONCLUSION INTRODUCTION Private law labels some relationships of power and dependence between persons "fiduciary." With the label come duties, enforceable through private rights of action, which aim to protect the beneficiaries of delegations of power to others from becoming victims of that dependence. To some, modern life is characterized by the emergence of a "society ... based predominantly on fiduciary relations." (1) Understood thus, fiduciary law encompasses not only the traditional doctrinal categories--trust, agency, partnership, corporations, and so on--but also all "important social and economic interactions of high trust and confidence that create an implicit dependency and peculiar vulnerability of the beneficiary to the fiduciary." (2) The work of the antebellum scholar Francis Lieber reveals how far this thinking can run. Writing in 1838, Lieber lumped constitutional law with trust law. (3) Every citizen, from the federal postmaster to the local haberdasher, was a fiduciary. The foundation of political duties, no less than that of duties that run from trustee to trust beneficiary, could be found in fiduciary law. More recently, a rising chorus of contemporary scholars has begun to argue for a model of government designed to constrain political discretion through judicial review based upon the law of fiduciary duties. …