Keeping the Promise of Public Fiduciary Theory: A Reply to Leib and Galoob

Abstract

For centuries, prominent jurists and political theorists have looked to private fiduciary relationships such as trusteeship, agency, and guardianship to explain and justify the authority of public officials and public institutions. This tradition has attracted increasing interest over the past decade, as legal scholars have used fiduciary concepts to elucidate important features of public law, from the nature and design of constitutional government, to the legal obligations that attend public offices such as judge and legislator. We have contributed to this revival of public fiduciary theory by showing that fiduciary principles can explain and justify the structure and content of administrative law and international law.

In an essay published recently in the Yale Law Journal, Professors Ethan Leib and Stephen Galoob argue that public fiduciary theory applies to some domains of public law but not others because these other domains “are incompatible with the basic structure of fiduciary norms.” In defending this claim, Leib and Galoob draw on and develop a revisionist theory of fiduciary law that is grounded in ethical and deliberative norms traditionally associated with affective relationships such as friendship. Based on this theory, they contend that public fiduciary theory applies only to relationships in which one party (the fiduciary) bears robust deliberative obligations, including a freestanding motivational requirement to attribute “nonderivative significance” to the interests of another party (the beneficiary). Leib and Galoob believe that these alleged deliberative characteristics of fiduciary relationships categorically rule out our arguments for using public fiduciary theory to explain and justify existing international law and its institutions.

In this Reply, we explain why the Leib-Galoob critique of public fiduciary theory misses the mark. Part I shows that their critique is based on a theory of fiduciary relations that is in tension with well-established features of private fiduciary law. Because their theory of fiduciary relations cannot explain core aspects of fiduciary law, it fails as a theory of fiduciary law.

Part II defends our fiduciary theory of public international law against the Leib-Galoob critique. Their critique applies their theory of fiduciary relations to international law, but because that theory is unpersuasive as a theory of fiduciary law, it cannot serve as a benchmark for assessing whether various fields of public law — including public international law — are amenable to fiduciary theorizing. Having said that, and to give our critics the benefit of the doubt, we consider whether international law and its institutions are as insensitive to deliberation as Leib and Galoob claim. There are significant aspects of international legal order — international adjudication and global administrative law — with national analogues that Leib and Galoob endorse as fruitful sites for public fiduciary theorizing. We similarly suggest that other features of international law, such as its dominant model for review of human rights violations, are also highly deliberation-sensitive — sensitive, that is, to public justification rather than to the decision-maker’s personal motives for decision, which are irrelevant.

Part III challenges Leib and Galoob’s methodological approach to public fiduciary theory, which draws on abstract moral philosophy to deduce ethical norms that (they claim) operate as legal constraints on a fiduciary’s internal mental states and processes. We explain why we — like most other public fiduciary theorists — have rejected this methodology in favor of an interpretivist approach that takes extant legal norms, institutions, and practices seriously as the starting point for critical analysis.

Keywords: fiduciary, fiduciary theory, fiduciary norms, international law, human rights, torture, administrative law, loyalty