Fiduciary Government

This book critically explores the idea that the state and its officials are fiduciaries of all individuals amenable to their jurisdiction.

Evan J. Criddle (Edited by), Evan Fox-Decent (Edited by), Andrew S. Gold (Edited by), Sung Hui Kim (Edited by), Paul B. Miller (Edited by)

9781107194243, Cambridge University Press

Hardback, published 15 November 2018

350 pages
23.6 x 16 x 2.5 cm, 0.62 kg

'The fiduciary theory of government holds that governments and government officials only hold power in trust for the benefit of others; therefore they have special duties of fairness and good faith. Debating both the attractions and the problems of the fiduciary conception, these essays are a valuable addition to a growing literature.' Jack M. Balkin, Yale Law School

The idea that the state is a fiduciary to its citizens has a long pedigree - ultimately reaching back to the ancient Greeks, and including Hobbes and Locke among its proponents. Public fiduciary theory is now experiencing a resurgence, with applications that range from international law, to insider trading by members of Congress, to election law and gerrymandering. This book is the first of its kind: a collection of chapters by leading writers on public fiduciary subject areas. The authors develop new accounts of how fiduciary principles apply to representation; to officials and judges; to problems of legitimacy and political obligation; to positive rights; to the state itself; and to the history of ideas. The resulting volume should be of great interest to political theorists and public law scholars, to private fiduciary law scholars, and to students seeking an introduction to this new and increasingly relevant area of study.

Introduction. Fiduciary government: provenance, promise, and pitfalls Evan J. Criddle, Evan Fox-Decent, Andrew S. Gold, Sung Hui Kim and Paul B. Miller
Part I. Modes of Governance: 1. Fiduciary representation Paul B. Miller
2. Two problems of fiduciary government D. Theodore Rave
3. Guardians of legal order: the dual commissions of public fiduciaries Evan J. Criddle and Evan Fox-Decent
4. Fiduciary theory: the missing piece for positive rights Laura S. Underkuffler
Part II. Historical Approaches: 5. 'The state is a minor': fiduciary concepts of government in the Roman law of guardianship Daniel Lee
6. Fiduciary government and government officers' incentives Nicholas R. Parrillo
Part III. The Problem of Legitimacy: 7. Fiduciary political theory and legitimacy Stephen R. Galoob and Ethan J. Leib
8. The state as a wrongful fiduciary Andrew S. Gold
Part IV. Corruption and Breach of Trust: 9. The Supreme Court's fiduciary duty to forgo gifts Sung Hui Kim
10. Congressional officials and the fiduciary duty of loyalty: lessons from corporate law Donna M. Nagy
11. The American law of local officials as fiduciaries: lessons on fiduciary government's potential and limits Nadav Shoked
Part V. Skeptical Challenges: 12. Pluralism and the public trust Seth Davis
13. The public trust Timothy Endicott.

Subject Areas: Constitutional & administrative law [LND], Company, commercial & competition law [LNC], Public international law [LBB], Comparative law [LAM], Jurisprudence & general issues [LA], Political science & theory [JPA]