Ethan J. Leib, David L. David, and Michael Serota,
A Fiduciary Theory of Judging,
101 Cal. L. Rev. 699
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol101/iss3/2
There are some fundamental questions of jurisprudence that have been with us from time immemorial. Cardozo started the modern conversation about the role of the judge in American democracy, but no one has been able to complete it. We have yet to uncover a satisfactory theory of judging that adequately accounts for the diverse, and often-times conflicting, responsibilities judges possess. Recent national controversies over judicial ethics at the Supreme Court, campaign contributions in state judicial elections, and the role of public opinion in judicial interpretation only underscore the growing urgency of clarifying the role of the judge. What are the qualities of a good judge? What are the relevant normative guideposts for a judge in a democracy that should constrain or inform interpretation? What are the sources of ethics for judicial behavior and performance? This Essay seeks to break some new ground on these fundamental inquiries by proposing a fiduciary theory of judging.
The following complexities reveal the importance of the inquiry at the heart of our project. We know that judges owe certain duties to the litigants before them, and that they also have some responsibility to "the state" for implementing its laws. But responsibility to "the state" is impersonal - and the citizens of a democratic state may also reasonably demand from their judges direct attention and responsiveness. Democratic governance ultimately consists of a series of relationships between rulers and ruled, so even if judges routinely think of our government as one of laws and not persons, self-government means precisely that laws must be traceable to citizens. It is, canonically, for judges to "say what the law is," but judges speaking the law must be held accountable if their rulings stray too far from the opinions of the people who authorize the judiciary to exercise this power. Yet, how to think about the nature of this accountability - thereby reconciling the principle of judicial independence with that of judicial responsiveness - is perplexing exactly because we lack a decidedly democratic theory of judging.
In what follows, we argue that there is a satisfying normative vision of the judicial role that could better orient members of the judiciary - and the academics who study them - lost in this thicket. By turning to the principle of fiduciary relationships, we uncover a new perspective from which we can better conceptualize the judicial role. Translating the fiduciary principle of the private law into a set of obligations for actors in the public law is well-grounded theoretically and has historical provenance in the framing of the U.S. Constitution. Once we effectuate that translation for judges in the political system, the Essay offers insight into what it means to be a judge in a democracy: the judge-as-fiduciary framework both confirms features of judgeship that seem obvious and central to the job, while providing a useful normative benchmark that can help guide some of today's most controversial debates about the judiciary. Indeed, by rooting the role of the judge in a centuries-old rubric that governs trusting relationships, this Essay sheds new light on the basic structure of and justifications for liberal democracies.