Balkinization: Fiduciary Creep

Fiduciary Creep

David Pozen

Samuel Bray and Paul Miller have posted a new paper that critiques a growing body of scholarship that argues that the Constitution imposes fiduciary duties on various actors, including the President. As Bray and Miller detail, the “fiduciary constitutionalism” literature has taken off over the last decade or so, both in terms of volume and influence and in terms of conceptual and empirical sophistication. The literature’s political valence also seems to have drifted from right to left following the election of Donald Trump.

Other fields of public law scholarship have made comparable fiduciary turns in recent years. These include administrative law, international law, and internet law. (I have written about this last turn on Balkinization before.) “We are undergoing something of an academic fiduciary renaissance,” James Grimmelmann observed in 2014, “with scholars arguing for treating legislators, judges, jurors, and even friends as fiduciaries.” Some believe that this transsubstantive trend—this fiduciary creep, if you will—holds “great promise.” Others worry that as scholars apply fiduciary principles to contexts further and further removed from trust law, agency law, and corporate law, they increasingly “deploy[] a sense of fiduciary so open as to be empty.”

Separate from the merits of any particular proposal, however, we might also ask a more meta-level question about fiduciary creep’s emergence as an academic phenomenon in this manner and at this time. Why have so many public law scholars begun to offer fiduciary theories? I can only speculate. But this being a blog post, and in the hope of sparking a conversation, speculate I shall. The following strike me as plausible if reductive hypotheses, none of which are mutually exclusive:

1. Academic epicycles. Fiduciary creep in constitutional law and other public law fields is the product of ordinary academic ebbs and flows, whereby certain theoretical approaches become trendy at certain moments and then fade away, only to be “rediscovered” by future generations. (Think of the republican revival in constitutional theory in the 1980s, for example.[*])

2. Academic exhaustion and entrepreneurship. Fiduciary creep reflects an ambient fatigue or disenchantment with prevailing normative public law theories, which have become thoroughly politicized if not also intellectually stale. This creates an opening for new concepts, narratives, and paradigms. As public law theories such as civic republicanism and unitary executivism grew increasingly contentious and increasingly associated with the political left and right, respectively, it created an opening for a fiduciary alternative.

3. Sustaining informal norms. Fiduciary creep responds to the growing recognition that unwritten norms of forbearance, good faith, good institutional citizenship, and the like do much of the work of sustaining healthy legal regimes, along with a desire to find an elastic yet well-pedigreed concept with which law can respond to worrisome norm deviations.

4. The new “neutral principles.” In an era marked by hyper-partisanship and many other forms of cultural and ideological fracture, fiduciary theory appeals to a formalist sensibility in promising to elevate certain public law disputes beyond political or moral disagreement. Struggles for power can be reframed as technical breakdowns or ethical lapses, strategic behavior as a bug rather a feature of public law systems.

5. The long shadow of L&E. Fiduciary creep is enabled by the colonization of public law thought by law-and-economics paradigms and in particular the impulse, conscious or subconscious, to assimilate (or shoehorn) complex institutional arrangements into dyadic principal-agent models.

6. Conflict suppression and theory “impurification.” Fiduciary creep follows a general pattern of abstract public law theories that are introduced to solve particular problems in an ostensibly depoliticized manner, only to be challenged, adapted, and appropriated by future theorists in ways that come to recapitulate the conflicts they were meant to transcend.

7. Postmodern anxiety. Fiduciary creep bespeaks a nostalgia for simpler times and the hope that today’s dizzyingly difficult challenges of state and society can be met with timeworn legal tools.

I suspect I am missing numerous other plausible hypotheses. And some of the items on this list may be off-base. But if it is correct that fiduciary creep has been occurring in multiple public law domains, it seems worthwhile to step back from the latest arguments and counterarguments, at least briefly, and ask what this trend might tell us about the legal academy and its relationship to legal and political practice.

[*] The connections between republican political thought and the fiduciary turn in public law are more than analogical. If the republican revival of the 1980s was grounded in neo-Athenian republicanism and its commitments to civic virtue and deliberative democratic decisionmaking, Evan Criddle has suggested that some part of today’s public law fiduciary scholarship grows out the revival of neo-Roman republicanism in the work of Philip Pettit, Quentin Skinner, and other political theorists during the 1990s. The basic idea seems to be that only by conceptualizing their offices in fiduciary terms can public authorities adequately safeguard liberty and exercise sovereign power in a manner compatible with popular sovereignty.

Posted 11:28 AM by David Pozen [link]