Institutional competence in fiduciary government

Abstract

There is broad consensus that elected officials, at least in some sense, stand in a fiduciary relationship with those they represent. But there is very little consensus on what, if anything, courts should do about that. One major concern with applying fiduciary ideas to government is whether courts -- which lack the democratic legitimacy and accountability of the elected branches -- have the institutional competence to police the relationship between elected officials and the electorate, which may sometimes require making political judgments. This chapter for the Research Handbook on Fiduciary Law, addresses the institutional competence of courts in fiduciary government. Courts face similar questions about their institutional competence in private law. We do not tend to think that judges are any better at making business judgments than political ones. But private law has developed a range of strategies for dealing with courts' incompetence in business matters. Corporate law, for example, sets up incentives for conflicted fiduciaries to seek approval of disinterested decisionmakers to whose business judgment courts can then defer. This chapter explains how courts can use similar strategies to address concerns about their institutional competence when applying fiduciary principles to similarly structured problems in public law. It also responds to some criticisms of my earlier proposal that courts should treat politicians as fiduciaries in the context of political gerrymandering and create incentives for conflicted legislators to adopt more independent processes for drawing district lines.