‘Mere Metaphor Is Not the Big Game’

Samuel L Bray and Paul B Miller, ‘Against Fiduciary Constitutionalism’, 106 Virginia Law Review 1479 (2020). In their irrepressibly interesting essay, Samuel Bray and Paul Miller argue hard against the idea that notions of fiduciary duty writ large ought to be welcomed within the analytical apparatus of United States constitutional law. They worry about ensuing anachronism – indeed, repeatedly underscore this concern. The 1787 constitution may be roughly contemporary with the law of trusts, for example. In the fiduciary notions we now try to group abstractly, however, much that is important dates from nineteenth and twentieth century developments – plainly coming too late to the party to figure as constitutional contemporaries. Bray and Miller concede that there is a very old practice of treating classical notions of loyalty and disinterest and the like as adding emphasis – maybe even urgency – to constitutional discussion … (more)

[Pat Gudridge, JOTWELL, 9 February]

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