Private Law Theory

ABSTRACT
Over the past decade, political and legal theorists began conscripting private fiduciary law to help delimit and define the duties of public officials. While enlisting additional legal prophylactics against arbitrary government may have appeared especially appealing during a Trump administration characterized by corruption and racism, this Article argues that straightforwardly applying fiduciary doctrine to political office is risky business. While scholars rightly point out the long, cross-pollinated history of the law of public and private trust, and while they recognize that rules against self-dealing fiduciaries apply equally well to both public and private officials, they occlude an important conceptual difference between public and private office: one serves an identifiable person with objectively identifiable interests; the other, a diverse population peppered with pluralism and conflict. As a result, transplanting private law fiduciary doctrine to public law and political office invites both juristocracy and populism ironically reproducing the mischiefs of the erstwhile Trump administration. Acting as if the democratic demos is an agent or settlor capable of holding ascertainable interests and issuing clear instructions invites judges and demagogues to define those interests and instructions for themselves. Drawing from political theory and the history of fiduciary law, this Article demonstrates that political representation and private fiduciary relationships are conceptually distinct and should be kept that way. Instead, this Article suggests that if any form of private fiduciary law can help elucidate the duties of public officials, that law is corporate law. The fiduciary duties of corporate law recognize that fiduciaries act for diverse and indefinite principles and, accordingly, provides for political (electoral), not merely juridical, accountability mechanisms.

Jackson, Katharine, Public and Private Fiduciaries: Agents, Trustees, and the Politics of Acting for Others (August 1, 2024).