Ethan J. Leib and Stephen R. Galoob
This chapter examines how fiduciary principles apply to public offices, focusing on what it means for officeholders to comport themselves to their respective public roles appropriately. Public law institutions can operate in accordance with fiduciary norms even when they are enforced differently from the remedial mechanisms available in private fiduciary law. In the public sector, fiduciary norms are difficult to enforce directly and the fiduciary norms of public office do not overlap completely with the positive law governing public officials. Nevertheless, core fiduciary principles are at the heart of public officeholding, and public officers need to fulfill their fiduciary role obligations. This chapter first considers three areas of U.S. public law whose fiduciary character reinforces the tenet that public office is a public trust: the U.S. Constitution’s “Emoluments Clauses,” administrative law, and the law of judging. It then explores the fiduciary character of public law by looking at the deeper normative structure of public officeholding, placing emphasis on how public officeholders are constrained by the principles of loyalty, care, deliberation, conscientiousness, and robustness. It also compares the policy implications of the fiduciary view of officeholding with those of Dennis Thompson’s view before concluding with an explanation of how the application of fiduciary principles might differ between public and private law settings and how public institutions might be designed or reformed in light of fiduciary norms.
D. Theodore Rave
This chapter examines the fiduciary nature of state authority. It begins with a historical background on how state authority has been conceived in fiduciary terms as far back as Plato, Cicero and Locke. It then surveys modern conceptions of the sovereign state as a fiduciary for the people subject to its power and explores applications of fiduciary political theory to. state agencies and public officials. A fiduciary view of state authority need not equate to a grand unified field theory of political legitimacy. But drawing on lessons from fiduciary law’s approach to similarly structured governance problems in the private realm can shed new light on perennial problems of public law. The chapter considers how fiduciary principles have been applied to the state across a variety of contexts, including the Indian trust doctrine, the public trust doctrine in natural resources law, administrative law, and constitutional law. Finally, it discusses various conceptions of the fiduciary state’s duties of loyalty and care to its subjects, along with remedies available when those duties are breached.
Deborah A. DeMott
This chapter identifies the fiduciary principles that are integral to agency relationships as defined by the common law and explores their implications. In contrast to relationships in which a fact-specific assessment of a relationship and its circumstances trigger the application of fiduciary duties, agency relationships are categorically treated as fiduciary. When a relationship of common-law agency links two persons, one person’s actions can directly carry legal significance for the other. Agency doctrine defines and imposes formal structure on consensual relationships in which one actor has legally consequential power to represent the other, encompassing externally oriented consequences for the principal, the agent, and third parties, as well as internally oriented rights and duties between agent and principal. An agent functions not as a substitute for the principal but as an extension of the principal’s legal personality in dealings with third parties and other externally oriented conduct within the scope of the agency relationship, including knowledge of facts acquired by the agent when material to the agent’s duties. The potentially grave impact for the principal, plus the implications for personal autonomy when one person represents another, underlie the requisites that define an agency relationship, including its fiduciary character.