Joshua Segev, ‘The (Unified?) Fiduciary Theory of Judging: Hedgehogs, Foxes and Chameleons’

There has been a resurgence of interest in constitutional theories about the role of the judge in the Anglo-American tradition in recent years. Another recurrent theme in contemporary American constitutional writing is the construction of fiduciary theories of government to limit and guide public officials’ discretion. Hence, the emergence of a unified fiduciary theory of judging – able to account for the responsibilities judges possess and the nature of the judicial office itself – was almost inevitable. After several initial and immature attempts to develop the theory, mostly as an inspiring metaphor, Ethan J Leib, David L Ponet, and Michael Serota have presented the most direct and well-developed judge-as-fiduciary model. According to their model, the judge is a fiduciary since he is empowered over the assets and legal interests of the public. …

Segev, Joshua, The (Unified?) Fiduciary Theory of Judging: Hedgehogs, Foxes and Chameleons (May 3, 2017). Faulkner Law Review.

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