Microsoft Word - PONET and LEIB

1249

FIDUCIARY LAW’S LESSONS FOR DELIBERATIVE

DEMOCRACY

DAVID L. PONET & ETHAN J. LEIB

∗

NTRODUCTION ............................................................................................. 1249

I. D

ELIBERATIVE DEMOCRATIC THEORY IN A NUTSHELL .................... 1250

II. T

HE FIDUCIARY DUTIES OF ELECTED AGENTS AND TRUSTEES ......... 1255

ONCLUSION ................................................................................................. 1261

NTRODUCTION

One of the ascendant understandings of democracy in contemporary

political theory is that democratic societies ought to be deliberative.

The

precise requirements for “deliberative democracy” are contested both as a

matter of normative theory and institutional design; but most deliberative

democrats see deliberation as essential to the legitimation of decision-making

within the polity. Yet deliberative democrats have expended most of their

efforts mapping what deliberation should look like at two different levels of

decision-making: the deliberation among citizens themselves in exercises of

direct and participatory democracy – and the deliberation among legislators or

other official actors within the organs of state government. Although it is

likely the case that most deliberative democrats would see an important role

for deliberation as between legislator and citizen, this deliberative space is

underexplored. It is easy to understand why this would be so: deliberative

democrats usually require that deliberation take place among free and equals,

and there is a very real sense in which legislators who deliberate with their

constituents do so from a position of political superiority and expertise. It thus

seems to us that a separate account of deliberation between legislators and

those they rule is necessary. In the Essay that follows, we suggest that features

of fiduciary law usefully model how deliberation can be understood between

political unequals, in particular when the individual with more political power

∗

David L. Ponet is a Parliamentary Specialist at UNICEF. Ethan J. Leib is Visiting

Professor of Law at Fordham Law School and Professor of Law at University of California -

Hastings College of the Law. Thanks to the Roger Traynor Scholarly Publication Award for

financial support; to the Boston University School of Law for the invitation to write and

present a version of this Essay; to Tamar Frankel for her hospitality and generosity of spirit;

and to Patrick Sellers and Fatima Khan for research assistance. This Essay contains only the

views of its authors, not any official views of UNICEF or the United Nations.

For a recent orientation to the state of the field, see Symposium, Democracy and

Deliberation, 22 C

RITICAL REV. 117 (2010).

1250 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 1249

is supposed to be holding the interests of the individual with less power in

trust. If our elected political leaders are, after all, our public fiduciaries, they

may be bound by fiduciary duties that underwrite a dialogic imperative with

their constituents. Yet, most essentially, fiduciary law’s lesson for deliberative

democracy is that a specialized kind of deliberation is possible and desirable

between unequals – between fiduciary and beneficiary.

I. D

ELIBERATIVE DEMOCRATIC THEORY IN A NUTSHELL

The theory of deliberative democracy focuses attention not on the kinds of

electoral or aggregative institutions necessary for democratic decision-making

but on the deliberative quality of a polity’s decision-making process. The

theory holds that the legitimacy of democratic decisions can be increased if

such decisions are preceded by deliberation that is as free as possible from

distortions associated with unequal power between deliberators.

There are

many versions of deliberative democracy, but at their core they all share a

commitment to deliberation over ways of measuring preferences that are not

preceded by deliberation.

Deliberation is routinely seen as valuable because

(1) it is conducive to better decisions;

(2) it can reinforce citizens’ equality,

dignity, and capacities for self-governance;

(3) it has educative value for

society collectively and citizens individually;

(4) it has epistemic value

because the deliberative process – when well-organized – can reveal or help

form consensual preferences that large majorities could not reasonably reject;

and (5) even when deliberation turns adversarial, it has value for social

integration and social solidarity: it can enable cross-cutting discourse in a safe

and regime-stabilizing way,

facilitating a public airing of many views and

subjecting them to requirements of public reason. None of these values is

guaranteed, of course;

but deliberative democrats have convinced most

See, e.g., DAVID HELD, MODELS OF DEMOCRACY 231-58 (3d ed. 2006); Joshua Cohen,

Deliberation and Democratic Legitimacy, in

DELIBERATIVE DEMOCRACY: ESSAYS ON

REASON AND POLITICS 67, 72-73 (James Bohman & William Rehg eds., 1997).

See AMY GUTMANN & DENNIS THOMPSON, WHY DELIBERATIVE DEMOCRACY? 3 (2004);

ICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 106-07 (2003).

See GUTMANN & THOMPSON, supra note 3, at 23. But see Mathew D. McCubbins &

Daniel B. Rodriguez, When Does Deliberating Improve Decisionmaking?, 15 J. C

ONTEMP.

LEGAL ISSUES 9, 11-12 (2006).

See GUTMANN & THOMPSON, supra note 3, at 47.

See John Elster, The Market and the Forum: Three Varieties of Political Theory, in

ELIBERATIVE DEMOCRACY, supra note 2, at 3, 23.

See GUTMANN & THOMPSON, supra note 3, at 102.

But see DIANA C. MUTZ, HEARING THE OTHER SIDE: DELIBERATIVE VERSUS

PARTICIPATORY DEMOCRACY 9 (2006).

For a review of various empirical challenges to the predictions by normative theorists,

see Dennis F. Thompson, Deliberative Democratic Theory and Empirical Political Science,

11 ANN. REV. POL. SCI. 497, 498-500 (2008).

2011] LESSONS FOR DELIBERATIVE DEMOCRACY 1251

political theorists that something important can be gained by enhancing the

opportunities for deliberation in democracies. In short, “[a]t the heart of the

deliberative conception of democracy is the view that collective

decisionmaking is to proceed deliberatively – by citizens advancing proposals

and defending them with considerations that others, who are themselves free

and equal, can acknowledge as reasons.”

In part because deliberative democratic theory has been so successful in

gaining adherents, it has become increasingly difficult to map the expanding

set of arguments that fall within its ambit. However, some general patterns

have emerged that divide thinkers in intramural disputes within the deliberative

democratic umbrella. Some deliberative democrats seek to create or expand

specialized institutions to cohere better with deliberative aspirations, even

while recognizing that many democratic decisions will be made through

aggregative procedures that do not allow many opportunities for deep

deliberation.

Others have a much more thorough-going conception that

requires all political institutions to engage in deliberative democratization.

Some find that theorists focus too much on deliberation within formal

institutions, unnecessarily downgrading the important deliberative work that

can happen within civil society and associational life.

Others argue about

whether deliberative institutions should be designed to form a binding public

will (“will-formation,” in the parlance) or merely to distill a better public

opinion (focusing on “opinion-formation”).

Many believe that striving for

deliberation in the context of opinion-formation is sufficient;

others

emphasize the importance of having deliberative institutions that are given the

task of making binding law – forming a public will.

The latter focuses

Joshua Cohen & Charles Sabel, Directly Democratic Polyarchy, 3 EUR. L.J. 313, 327

(1997).

See, e.g., ETHAN J. LEIB, DELIBERATIVE DEMOCRACY IN AMERICA: A PROPOSAL FOR A

POPULAR BRANCH OF GOVERNMENT 4 (2004); Richard H. Pildes, Competitive, Deliberative,

and Rights-Oriented Democracy, 3 E

LECTION L.J. 685, 686 (2004).

See, e.g., Bernard Manin, On Legitimacy and Political Deliberation, in NEW FRENCH

THOUGHT, POLITICAL PHILOSOPHY 186, 186-200 (Mark Lilla ed., 1994).

See John Dryzek, Deliberative Democracy in Different Places, in THE SEARCH FOR

DELIBERATIVE DEMOCRACY IN CHINA 23, 23 (Ethan J. Leib & Baogang He eds., 2d ed.

2010).

See Ethan J. Leib, Pragmatism in Designing Popular Deliberative Institutions in the

United States and China, in T

HE SEARCH FOR DELIBERATIVE DEMOCRACY IN CHINA, supra

note

13, at 113, 124.

See, e.g., BRUCE ACKERMAN & JAMES S. FISHKIN, DELIBERATION DAY 3-16 (2004).

James Fishkin is among the most well-known defenders of the opinion-formation model of

deliberative democracy. See J

AMES S. FISHKIN, WHEN THE PEOPLE SPEAK: DELIBERATIVE

DEMOCRACY AND PUBLIC CONSULTATION 2 (2009).

See Ethan J. Leib, Can Direct Democracy Be Made Deliberative?, 54 BUFF. L. REV.

903, 914 (2006).

1252 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 1249

deliberators on a practical task at hand (deliberation should be about doing

something) and serves to empower them and deliberation itself.

Most central to our concerns here, however, is the clear divide between the

deliberative democrats who focus principally on deliberation among political

elites and those who have a more populist orientation, concerning themselves

with the deliberations of lay citizens. The “elitists” urge deliberation among

and within the class of judges, legislators, and, potentially, interest groups.

Populists, by contrast, believe that the benefits deliberation offers must be

pursued through popular institutions, and that deliberation should take place,

first and foremost, among citizens themselves.

To be sure, there have been

“two-track” theorists that have always sought to deepen deliberation at both

levels of politics: Bruce Ackerman and Jürgen Habermas self-identify as such

and have done the most to disrupt deliberative democratic theory’s bifurcated

personality.

Yet there is a salient critique of this dualism that has never been adequately

addressed: the deliberative circuit of citizen power that usually resides in

public opinion and civil society really is routinely conceived to operate parallel

to – rather than intersecting with – the more decisionistic and legislative

circuits of power in the organs of the state. Although dualists imagine that

citizen “discourse power” or “communicative power” is somehow to influence

the formal political system, the mechanisms of how the parallel deliberations

are supposed to converge or usefully interact is never specified well within

deliberative theories. Although dualists understand the gap between the

political system and civil society, they struggle to find points of contact.

For example, in Between Facts and Norms, Habermas offers a

“sociological” model for understanding the way power should be distributed

within any legitimate political order.

He is emphatic that one of the central

tests for the legitimacy of a state “depends primarily on whether civil society,

through resonant and autonomous public spheres, develops impulses with

enough vitality to bring conflicts from the periphery into the center of the

See Leib, supra note 16, at 905-06; Leib, supra note 14, at 124; Chris Elmendorf &

Ethan J. Leib, Budgets by the People, for the People, N.Y.

TIMES, July 28, 2009, at A25.

See, e.g., JOSEPH M. BESSETTE, THE MILD VOICE OF REASON: DELIBERATIVE

DEMOCRACY AND AMERICAN NATIONAL GOVERNMENT 3 (1994); AMY GUTMANN & DENNIS

THOMPSON, DEMOCRACY AND DISAGREEMENT 8 (1996); JOHN RAWLS, POLITICAL

LIBERALISM 231-40 (1993) (focusing on the U.S. Supreme Court as a deliberative

institution); J

OHN UHR, DELIBERATIVE DEMOCRACY IN AUSTRALIA 35-233 (1998); JEREMY

WALDRON, THE DIGNITY OF LEGISLATION 1 (1999).

One of us mapped this terrain early – and sided with the populists. See LEIB, supra

note 11, at 31-35.

See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6-7 (1991); JÜRGEN

HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW

AND

DEMOCRACY 288 (William Rehg trans., 1996) (1992).

HABERMAS, supra note 20, at 356.

2011] LESSONS FOR DELIBERATIVE DEMOCRACY 1253

political system.”

Habermas calls failures to translate the deliberative

impulses of civil society into content for the state “autism.”

A legitimate

political system must not “bypass[] the communicative power of the public of

citizens.”

He therefore aspires to create better pathways between civil

society and the state.

He is interested in the political system being “shaped

by deliberative politics, that is, shaped by the publicly organized contest of

opinions between experts and counterexperts and monitored by public

opinion.”

Yet how can we envision, if at all, the interactions between the two

systems of discourse, one among lay citizens and the other among political

elites within the political system?

Ultimately, Habermas is far too sanguine about civil societies’ “signaling,”

“thematizing,” and “problematizing” functions.

While a few civil

associations may occasionally be successful in steering the deliberations of the

state (and they often turn out to be those principally organized for “special

interests”), Habermas is too ready to allow civil society’s influence to be

wholly indirect most of the time: civil society’s impact on politics for

Habermas is almost always oblique.

When he does allow for direction,

Habermas envisions an emergency: “For our purposes, it suffices to make it

plausible that in a perceived crisis situation, the actors in civil society . . . can

assume a surprisingly active and momentous role.”

In the final analysis,

Habermas imagines no necessary interaction between civil society and the

political system but only requires that it be possible for civil society to exert

direct and directive power in a crisis situation. Notwithstanding the reality that

crisis situations may be just the kinds of cases where we hope our rulers can

react responsibly and on their own, he leaves many questions open about how

the political system can generally recalibrate with civil society. Yet there must

be a way for dualists – who pursue deliberative development of elites within

the political system as well as of citizens in civil society – to envision more

Id. at 330.

Id. at 335.

Id. at 352.

Id. at 356 (“This sociological translation of the discourse theory of democracy implies

that binding decisions, to be legitimate, must be steered by communication flows that start at

the periphery and pass through the sluices of democratic and constitutional procedures

situated at the entrance to the parliamentary complex or the courts . . . .”).

Id. at 351.

Id. at 359.

Id. at 372 (“Civil society can directly transform only itself, and it can have at most an

indirect effect on the self-transformation of the political system; generally, it has an

influence only on the personnel and programming of this system.”).

Id. at 380. Habermas invokes Cohen’s and Arato’s theory of civil society; Cohen and

Arato also suggest that its communicative power is limited to moments of crisis. See J

EAN

COHEN & ANDREW ARATO, CIVIL SOCIETY AND POLITICAL THEORY 587 (1992). While this

may have empirical and sociological resonance, in our view, it is normatively too

complacent.

1254 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 1249

direct deliberation between these spheres to bring concerns from the peripheral

systems of non-binding deliberation among citizens to the core decision-

making organs of state government.

We don’t imagine that dualism’s failure to envision deep and regularized

interaction between elitist and populist deliberative spheres is mere path-

dependence. Rather, something about the theory challenges the interaction of

spheres. From its very early formulations, deliberative democratic theory has

required that deliberation take place between only “free” and “equal”

deliberators; distortions through any form of unequal power are highly

disfavored.

Some have suggested that there is no difference in freedom and

equality as between legislator and lay citizen.

However, we suspect that

deliberative democrats have given deliberation between legislator and citizen –

a perfect mechanism to bring the periphery of deliberating citizens to the core

of deliberating elites

– very little attention because it is difficult to imagine

citizens seeing themselves as political equals with those who rule over them.

Empirical studies of deliberation teach us that deference to perceived political

superiors is common and can subvert deliberation.

Surely it doesn’t take too

much imagination to see the challenges associated with actual deliberation

between rulers and ruled.

Yet as difficult as it may be to imagine ruler and ruled coming together to

deliberate in a manner consistent with the aspirations of deliberative

democracy, we think understanding democratic rulers as fiduciaries illuminates

the nature of the dialogic possibilities for deliberation between political

unequals. Indeed, John Locke and our nation’s founders already understood

that public officials are fundamentally fiduciaries for the people

– and some

recent work in legal theory seeks to develop what might be entailed if we

Cohen, supra note 2, at 72. This requirement is further reinforced in Cohen’s essay in

another of the major books that cannonized the deliberative democracy movement. See

Joshua Cohen, Democracy and Liberty, in D

ELIBERATIVE DEMOCRACY 185 (Jon Elster ed.,

1998).

See James Bohman, Deliberative Democracy and Effective Social Freedom:

Capabilities, Resources, and Opportunities, in D

ELIBERATIVE DEMOCRACY: ESSAYS ON

REASON AND POLITICS, supra note 2, at 321, 343.

Although we try to remain consistent with Habermasian rhetoric here, our

metaphorical preference would be more eccentric: popular deliberation is not merely

peripheral to democracy’s core, in our view.

See Lynn M. Sanders, Against Deliberation, 25 POL. THEORY 347, 349 (1997).

See JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT 68-73 (Tom Crawford

ed., Dover Publ’ns 2002); T

HE FEDERALIST, Nos. 14, 53 (James Madison), No. 35

(Alexander Hamilton); Robert G. Natelson, Judicial Review of Special Interest Spending:

The General Welfare Clause and the Fiduciary Law of the Founders, 11 T

EX. REV. L. &

POL. 239, 245 (2007). This lineage traces through Rousseau as well. See Nadia Urbinati &

Mark E. Warren, The Concept of Representation in Contemporary Democratic Theory, 11

NN. REV. POL. SCI. 387, 388 (2008).

2011] LESSONS FOR DELIBERATIVE DEMOCRACY 1255

started thinking about public officers as being bound by the fiduciary duties

rooted in private law.

In this spirit, Part II of this Essay reviews the standard fiduciary duties in the

private law context and tries to translate what they might mean for public

fiduciaries. Our hope is that seeing how to think about public officials as

fiduciaries reveals a mechanism by which we can sensibly understand

deliberation between political unequals. This mechanism may fill the gap

within dualist accounts of deliberative democracy. When rulers are supposed

to be responsive and democratically accountable to the ruled – whose interests

rulers are supposed to be holding in trust – they may be required to deliberate

with those whom they govern. Deliberative democratic theory can learn from

fiduciary law how to imagine deliberation in such asymmetrical power

contexts.

II. T

HE FIDUCIARY DUTIES OF ELECTED AGENTS AND TRUSTEES

Fiduciaries under private law manage the affairs and assets of beneficiaries

within strict legal and ethical requirements that demand fidelity to beneficiary

interests.

In the fiduciary relationship, the beneficiary is dependent on the

fiduciary to act after her interests and the fiduciary is, accordingly, obligated to

use her entrusted discretionary power in pursuit of the beneficiary’s interests.

Because they are difficult to monitor and have wide access to power over

beneficiary resources and assets, fiduciaries are under rigorous obligations that

ensure compliance with their role responsibilities.

Here, we pursue the

content of these obligations in the private context and seek to translate what

they might include in a public fiduciary context.

First, however, a word about why this translation is viable in the first place.

Ultimately, thinking of public officials as fiduciaries is not only an historical

inheritance but is also indicated by functional and structural considerations of

the relationship between ruler and ruled. A distinctive feature of the fiduciary

relationship – the inequality and asymmetry between fiduciary and beneficiary

– maps well onto the relationship between rulers and ruled.

The inequality

See, e.g., Evan J. Criddle, Fiduciary Administration: Rethinking Popular

Representation in Agency Rulemaking, 88

TEX. L. REV. 441, 443-49 (2008) (focusing on

agency personnel); Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54

UCLA L. REV. 117, 120-23 (2006) (same); Evan Fox-Decent, The Fiduciary Nature of State

Legal Authority, 31 Q

UEEN’S L.J. 259, 260-61 (2005) (focusing more broadly on state

authority).

See Criddle, Fiduciary Administration, supra note 35, at 468.

See id.

Tamar Frankel, in her new book on fiduciary law, observes that elected office holders

hold a type of entrusted power and, therefore, that the relationship between elected ruler and

ruled is a type of fiduciary relationship. See TAMAR T. FRANKEL, FIDUCIARY LAW 22-23

(2011).

1256 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 1249

and asymmetry within the relationship usually flows from the fiduciary’s

possession of greater expertise or greater information than the beneficiary,

leaving the beneficiary vulnerable to the fiduciary’s predation.

And rulers

usually have access to information and law-making expertise that lay citizens

do not.

Legislators have control over citizens by being able to criminalize

their conduct, take their money for taxes, take their property for “public use,”

and spend public resources in their name.

The fiduciary is also often described as being in a position of “superiority”

to beneficiaries.

In the context of democratically-elected public servants,

there is conventionally considered to be a vertical gap that separates ruler and

ruled. As Bernard Manin has compellingly argued, election confers an

irreducible dimension of superiority on the elected ruler; the logic of election

demands that the ruler is she who stands out and above from the rest on some

relevant dimension.

With elections, we select rulers who are extra-ordinary;

while the act of voting may be broadly democratic, the fact of being ruled by

someone in possession of superiority marks the ineliminable aristocratic

element of the ruler relative to the ruled. This superiority reinforces the utility

of thinking about democratic rulers as fiduciaries, who need strict ethical

parameters to control how they hold beneficiaries’ interests in trust.

Once it no longer seems disorienting to think about elected officials in

democracies as fiduciaries, it becomes reasonable to assess how to think about

the concomitant duties that fiduciaries owe their beneficiaries. Although it is

common knowledge within fiduciary law that the strictness with which the

fiduciary duties are enforced varies greatly with context,

there are some

general duties that are seen as essential to help monitor for fiduciary default

that we think can be brought to bear on the public fiduciary. In particular,

within fiduciary law we identify a constellation of obligations that can be read

to require “deliberative engagement” when applied to democratic rulers:

See D. Gordon Smith, The Critical Resource Theory of Fiduciary Duty, 55 VAND. L.

REV. 1399, 1413-15 (2002).

The “voter ignorance” problem is at the core of some scholars’ challenge to

deliberative democracy. See, e.g., Ilya Somin, Deliberative Democracy and Political

Ignorance, 22 C

RITICAL REV. 253, 253 (2010); Ilya Somin, Voter Ignorance and the

Democratic Ideal, 12 C

RITICAL REV. 413, 413 (1998).

See Ethan J. Leib, Friends as Fiduciaries, 86 WASH. U. L. REV. 665, 673-78 (2009).

BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT 139-40 (1997)

(“[A] quality that is favorably judged in a given culture or environment and is not possessed

by others constitutes a superiority: those who possess it are different from and superior to

those who do not. Thus, an elective system leads to the self-selection and selection of

candidates who are deemed superior, on one dimension or another, to the rest of the

population, and hence to voters. It is no accident that the terms ‘election’ and ‘elite’ have

the same etymology and that in a number of languages the same adjective denotes a person

of distinction and a person who has been chosen.”).

See Leib, supra note 42, at 678.

2011] LESSONS FOR DELIBERATIVE DEMOCRACY 1257

elected rulers or legislators must deliberatively engage the ruled on account of

their fiduciary status in their unequal relationships with their beneficiaries.

We explain briefly below how to tease a deliberative engagement

requirement out of the traditional fiduciary duties. Our aim is to examine the

legal requirements of the fiduciary selectively in the private law context and to

derive a principle of political morality that we can apply to elected rulers,

which can help bridge the chasm between the two deliberative spheres we

explored in Part I. The fiduciary duties are routinely described as a duty of

loyalty and a duty of care – as well as duties of candor, disclosure, and utmost

good faith.

We take them up in turn. Note that for the purposes of our

specific argument here, it isn’t quite necessary to show that public officials are

under a fiduciary duty of deliberative engagement – only to reveal that

deliberative democrats have missed out on a structural possibility for

deliberation between spheres of “unequals” that fiduciary law makes visible.

Most centrally, fiduciaries have a duty of loyalty which prohibits them from

acting in a self-interested manner. The duty requires that fiduciaries act for the

sole benefit of the beneficiary and prohibits their acting in any manner where

their interests conflict with the interests of the beneficiary.

Fiduciaries must

“act solely for the benefit of the principal in all matters connected with his

agency.”

Indeed, the command of loyalty is so strong that even if a self-

interested transaction by a fiduciary produces no harm to a beneficiary

whatsoever, the duty of loyalty will be regarded as violated.

However,

informed consent – dialogue between fiduciary and beneficiary – can relax this

stricture and protect the fiduciary against accusations of breach.

Dialogue

and deliberation between fiduciary and beneficiary thus function to exempt the

We’ve pursued the political duty of deliberative engagement elsewhere. See generally

Ethan J. Leib & David L. Ponet, Representation in America: Some Thoughts on Nancy

Pelosi, Gavin Newsom, Tim Johnson, and Deliberative Engagement, 16 GOOD SOCIETY 1

(2007); Ethan J. Leib & David Ponet, The Ethics of Representative-Constituent Relations,

FINDLAW’S WRIT (July 26, 2007), http://writ.news.findlaw.com/commentary/20070726_

ponet.html. But we didn’t appreciate how the fiduciary obligations that rulers owe the ruled

underwrite their ethical obligations.

See Leib, supra note 42, at 673-78. Here, we steer clear of the debates about whether

all the duties flow out of only the duties of loyalty and care. Although a duty of

confidentiality is often discussed as a fiduciary obligation, it doesn’t translate – so we ignore

it in what follows.

See FRANKEL, supra note 39, at 121-31; see also Birnbaum v. Birnbaum, 539 N.E.2d

574, 576 (N.Y. 1989); Lynn A. Stout, On the Export of U.S.-Style Corporate Fiduciary

Duties to Other Cultures: Can a Transplant Take?, in GLOBAL MARKETS, DOMESTIC

INSTITUTIONS: CORPORATE LAW AND GOVERNMENT IN A NEW ERA OF CROSS-BORDER DEALS

46, 55 (Curtis J. Milhaupt ed., 2003).

RESTATEMENT (SECOND) OF AGENCY § 387 (1958).

See John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 YALE L.J.

625, 655-56 (1995).

FRANKEL, supra note 39, at 200-04.

1258 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 1249

fiduciary from the extreme proscriptions otherwise suggested by the duty of

loyalty.

Several deliberative conditions must be met for informed consent to obtain:

(1) There must be fiduciary notification to a beneficiary about a conflict even if

it will result in no harm – and could in fact benefit – the principal; (2)

beneficiaries are entitled to full information about the conflict and potential

self-dealing; and (3) the beneficiary’s expression of informed consent, when

and if it comes, should be clear and precise.

Of course, this potential route

for insulation from the duty of loyalty does not translate into an affirmative

duty to consult with beneficiaries. Nevertheless, it does create an incentive for

fiduciaries to deliberate with beneficiaries if they wish to remain beyond

reproach. Additionally, the type of deliberation required focuses on full

information and the solicitation of a lucid reaction,

which probably requires

some authentic engagement between fiduciary and beneficiary. It may be

going too far to say that the fiduciary is obligated to engage in dialogue with

the beneficiary from the private duty of loyalty alone. However, translating

the duty into a command of political morality would suggest such a dialogue.

Applied to the political context from its private law roots, these deliberative

maxims suggest that rulers – while always retaining some discretion over how

to act

– only remain beyond censure when seeking the informed consent of

the governed. The duty of loyalty creates an affirmative incentive on the part

of the ruler to deliberatively engage constituents; only through dialogue and

exchange is the elected fiduciary shielded from the charge that she acted after

her own private good or the good of her funding patrons rather than the public

good dictated by her office. Moreover, the authorization that elections confer

upon legislators may very well be circumscribed by the implied duty to check

back in from time to time to reinforce loyalty. After all, citizens can often

change their interests after election season, and the public fiduciary ought to be

under an obligation to engage and discern what those interests are.

The duty of care includes deliberative or dialogic elements that also help

model the relationship between political unequals in a deliberative democracy.

In a word, the duty of care demands that the fiduciary performs her tasks in a

responsible, prudent, and diligent manner such that duties are not only carried

out, but executed well.

To be sure, in order for a fiduciary to act with care,

Id.

After all, in order to be rulers they usually must hold the authorization to decide in

representative lawmaking.

See Smith v. Van Gorkom, 488 A.2d 858, 872-73 (Del. 1985); ROBERT CHARLES

CLARK, CORPORATE LAW 123-36 (1986); Robert Cooter & Bradley J. Freedman, The

Fiduciary Relationship: Its Economic Character and Legal Consequences, 66 N.Y.U.

REV. 1045, 1047, 1049 & n.8 (1991). Fox-Decent has this as a general “duty of

reasonableness,” though it seems that he classifies it as part of the duty of loyalty. See Fox-

Decent, supra note 35, at 264-65.

2011] LESSONS FOR DELIBERATIVE DEMOCRACY 1259

she must weigh the range of alternative actions against the balance of her

expertise and superior information, following a rationally considered course of

action.

When transposed to the political context, the duty to act with care can be

understood as an obligation to consult with and deliberatively engage

constituents as part of the process of rationally considering their preferences

and assessing the full panoply of potential courses of action within the public

fiduciary’s authorization. Deliberation with constituents does not deny the

expertise and discretion accorded the elected fiduciary, but recognizes that

there is a critical space for dialogue (even among unequals). Authentic

exchange between rulers and governed can indeed contribute to the elected

fiduciary’s ability to act with care as her office demands. While not bound by

her constituents’ preferences and interests, exercising her presumptively

superior wisdom and expertise with care counsels that she act in manner

respectful and responsive to them. Authentic deliberation between the rulers

and the ruled is the most apt way to achieve such care.

The duty to account flows from the duties of candor and disclosure,

whose

dialogic components are quite evident. Without disclosure and candor,

beneficiaries would be unable to monitor fiduciaries in any meaningful sense.

Accounting includes a duty to inform beneficiaries of past behavior and to take

responsibility – show accountability – for activities undertaken pursuant to the

power and discretion fiduciaries hold.

Whereas the duty to disclose and be

candid has a prospective component, the duty to account has a retrospective

valence.

It is necessary to impose a duty to account and a duty to be candid upon

public fiduciaries such that accountability to the governed is not limited to

electoral competition. Indeed, incumbency, campaign financing, and term

limits substantially impair electoral accountability mechanisms, so the ruled

need greater access to information to monitor their fiduciaries.

Just as some

See Fox-Decent, supra note 35, at 264-65.

FRANKEL, supra note 39, at 101-83 (discussing the duties of fiduciaries); Tamar

Frankel, Fiduciary Law, 71 C

AL. L. REV. 795, 814 (1983).

See, e.g., Jordan v. Duffs & Phelps, 815 F.2d 429, 436 (7th Cir. 1987); Libby v. L.J.

Corp., 247 F.2d 78, 81 (D.C. Cir. 1957); Moore v. Regents of the Univ. of Cal., 793 P.2d

479, 483 (Cal. 1990); Rosenthal v. Rosenthal, 543 A.2d 348, 352 (Me. 1988); Herring v.

Offutt, 295 A.2d 876, 879 (Md. 1972); Wendt v. Fischer, 154 N.E. 303, 304 (N.Y. 1926)

(Cardozo, J.) (“If dual interests are to be served, the disclosure to be effective must lay bare

the truth, without ambiguity or reservation, in all its stark significance.” (citations omitted));

Deborah A. DeMott, Beyond Metaphor: An Analysis of Fiduciary Obligation, 1988 DUKE

L.J. 879, 882 (stressing that fiduciaries “must be candid”).

FRANKEL, supra note 39, at 130.

See Fred Wertheimer & Susan Weiss Manes, Campaign Finance Reform: A Key to

Restoring the Health of Our Democracy, 94 C

OLUM. L. REV. 1126, 1127, 1136 (1997);

Robert P. Beard, Note, Whacking the Political Money “Mole” Without Whacking Speech:

Accounting for Congressional Self-Dealing in Campaign Finance Reform After Wisconsin

1260 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 1249

principals can fire their fiduciaries but are still entitled to an accounting and

candor, so too are political principals – the people – owed a range of fiduciary

duties from their elected officials so they can monitor their conduct over time,

even in the middle of a term in office.

One of the central features of proper

deliberation according to the architects of deliberative democracy is that it

must be ongoing and its members “expect it to continue into the . . . future.”

Accordingly, public fiduciaries’ duties of candor, disclosure, and accounting

are deliberative requirements that are applicable throughout an elective term.

The final fiduciary obligation that we think supports our deliberative lens

into fiduciary law is the duty of utmost good faith. This duty is, of course, not

unrelated to the duty of loyalty and the duties of disclosure and candor.

applied to the legislator-fiduciary, it might reinforce the idea that democratic

rulers cannot pursue their vision of the good without some attempt to connect

their policy initiatives to the preferences of the governed. Moreover, the good

faith duty may pertain to the frequency required of political fiduciaries to

check back in with their constituents.

Indeed, the good faith requirement in

fiduciary law underscores the fact that preferences and interests are not fixed in

time but can undergo revision and reformulation. The political relationship

between ruler and ruled is ongoing and extends beyond bookend election days.

It must consist of opinion and preference exchange, rational argumentation,

and enduring dialogue and deliberation that stretch over time to make the

relationship work properly.

The good faith requirement of the public

fiduciary necessitates that she be honest, transparent, and communicative in an

ongoing way – or she risks default.

When viewing the multiple fiduciary duties with an eye toward their

convergence around a deliberative mandate, it becomes clear how the

relationship between fiduciary and beneficiary – one between presumptive

unequals – models the relationship between elected officials and their

Right to Life, 2008 U. ILL. L. REV. 731, 752-53.

For an argument that citizens are owed a duty of candor, see JEFFREY EDWARD GREEN,

THE EYES OF THE PEOPLE: DEMOCRACY IN AN AGE OF SPECTATORSHIP 3 (2009). Green

doesn’t derive his duty of candor from the fiduciary principle, however.

Cohen, supra note 2, at 72. Although Cohen requires deliberation to be projected into

the “indefinite” future, that condition may be too stringent: some legislators operate under

term limits, which obviously is an outer bound on the length of deliberation. Id.

Id.

This is a way, consistent with Stone v. Ritter, 911 A.2d 362, 370 (Del. 2006) and In re

Walt Disney Co. Derivative Litig., 907 A.2d 693, 753-57 (Del. Ch. 2005), aff’d, 906 A.2d

27 (Del. 2006), to render the duty of good faith as a gloss on and clarification of the duty of

loyalty. This duty shows the duty of loyalty to “encompass[] more than the negative duty to

refrain from unconsented-to self-dealing.” Letter from Deborah A. DeMott to Ethan J. Leib

(Sept. 12, 2007) (on file with author); see also Stephen M. Bainbridge et al., The

Convergence of Good Faith and Oversight,

55 UCLA L. REV. 559, 582-88 (2008).

FRANKEL, supra note 39, at 130.

See Leib & Ponet, Representation in America, supra note 45.

2011] LESSONS FOR DELIBERATIVE DEMOCRACY 1261

constituents. Once we expose this deliberative command, it becomes easier to

envision how the dualist spheres of deliberation can be brought into contact:

through direct deliberative engagement by public officials with their lay citizen

beneficiaries.

ONCLUSION

By specifying the duty of what we term deliberative engagement as one

owed to the ruled by the rulers, we show that deliberation should not be

confined to separate classes of rulers and ruled but structurally must unfold

between these classes. It is insufficient for elected trustees and agents to

deliberate amongst themselves about those they govern or represent without

actually consulting their constituents. Fiduciary law and legislators’ fiduciary

status brings this command to light.

Politically unequal though they may be,

legislators and lay citizens must engage in real deliberation, with legislators

subject to the stringent loyalty, care, accounting, candor, disclosure, and good

faith requirements appropriate to their fiduciary role. Fiduciary law, as we

have explored its basic contours here, reveals just how important deliberation

among unequals is and helps provide a conceptual apparatus – otherwise

lacking in the reigning models of deliberative democracy – for how to model

deliberation between political unequals.

In summary, understanding elected rulers as public fiduciaries offers lessons

for deliberative democracy by envisaging a deliberative space for rulers and

ruled to interact. Of course, political morality is very difficult to enforce; even

if we thought the actual private law fiduciary duties created legal obligations

on elected officials, courts only rarely impose fiduciary duties directly.

Especially in the political context, substantial default cannot easily trigger a

remedy: recall is very rare and generally citizens must wait until the next

election to “throw the rascals out.” Still, the fiduciary model can marshal

social norms that can help shape and police the deliberative relationship that

must unfold between citizens and their elected leaders. While proponents of

deliberative democracy continue to pay much attention to designing

institutions wherein lay citizens can deliberate with each other, bringing the

public fiduciary principle into deliberative democracy’s ambit suggests that

future research should be dedicated to thinking more deeply about how to

design institutions for lay citizens to deliberate with their elected fiduciaries.

We tend to think that Criddle’s vision of the public fiduciary is too sanguine about

elites deliberating amongst themselves on behalf of the people without a further requirement

that they deliberate with the people. See Criddle, Fiduciary Administration, supra note 35,

at 470-73.