Ethan J. Leib

Intentions, compliance, and fiduciary obligations

This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to the possibility of “accidental compliance.” Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of fiduciary loyalty is best described by what we call the “shaping” account. This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing fiduciary obligations. “Contractarianism” configures fiduciary obligations as a species of contractual duties. The view that we call “proscriptivism” reduces fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of fiduciary loyalty.

A Fiduciary Theory of Judging

For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. How do we reconcile the call of judicial independence — a function of a judge’s obligation to uphold the rule of law — with that of judicial responsiveness — the obligation that, as a branch of government in a democratic polity, judges must ensure that the law not derogate too far from the will of the people? This paper reveals how the law governing fiduciary relationships sheds new light on this age-old quandary, and therefore, on the very nature of the judicial office itself. In so doing, the paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insight into what it means to be a judge in a democracy, while providing practical guidance in resolving a range of controversial and hotly contested legal issues surrounding judicial performance, such as judicial ethics at the Supreme Court, campaign contributions in state judicial elections, and the role of public opinion in constitutional interpretation.

Why Party Democrats Need Popular Democracy and Popular Democrats Need Parties

Too often popular political power – whether it is in the form of direct democracy or other more innovative forays in participatory or deliberative democracy – presents itself as a counterweight to the political power parties wield. Yet setting up “popular democracy” and “party democracy” in opposition to one another in the American political landscape is not only unnecessary but also pathological: it thwarts an understanding of their potential for mutual enrichment. Popular democracy and party-based representative democracy in the American states each have characteristic limitations. Mass popular democracy – the ballot initiative and the referendum – presents a daunting informational challenge for ordinary voters. Popular democracy in its more selective, deliberative forms gives rise to unanswered questions about agenda-setting and legitimation. Meanwhile, party democracy as practiced in the American states often fails to realize the virtues claimed for it, because structural features of state government occlude party-based accountability, and because parties may not develop coherent, competitive state-level brands. We argue that institutional designers can use parties to solve some of the characteristic problems of popular democracy, and popular democracy to improve the functioning of party democracy. We illustrate our claims with a discussion of two seemingly disparate problems: state budget stalemates, and the design of state constitutional conventions.

Pragmatism in Designing Popular Deliberative Institutions in the United States and China

When I shared with friends that I was going to China to participate in a conference about how to institutionalize forms of deliberative democracy there, most people asked me the same questions: how can you talk about deliberative democracy in China without first talking about democracy more generally? Is it not more important to democratize China in the first instance and only later worry about how to get it to be a deliberative democracy? At first, these questions were paralyzing. I knew little about Chinese politics, but I knew enough to understand where these questions were coming from.

Representation in America: Some Thoughts on Nancy Pelosi, Gavin Newsom, Tim Johnson, and Deliberative Engagement

democracy. He thought that citizens living under representative political institutions are free, at best, one day a year: Election Day. After casting their ballots, citizens are enslaved—and denuded of the very power and authority that is exercised in their names. Delegation of decision-making to representatives was seen by Rousseau and many that followed as servitude, albeit potentially voluntary servitude. Rousseau’s repudiation of political representation constitutes a major challenge to theorists and practitioners of contemporary representative democracy. Yet one can hardly conceive of democratic society and the modern democratic nation-state without representation. Not only are countries like the United States far too populous for routine direct participation, but many citizens ultimately prefer to bow out of politics and let experts and career politicians do the work of governing. Still, for the many who wish to cleave to the notion that representative government can be vindicated as a meaningful democracy in action, Rousseau’s central question remains: How can citizens reconcile democracy with representation? Surely we want some kind of relationship between the people and their representatives that amounts to more than ballot-casting followed by the voluntary assumption of shackles. What is the nature of this relationship—and can it be specified as a principle of democratic political morality? Our view is that representation is properly democratic rather than fundamentally subjugating only when representatives deliberatively engage their constituents. The duty of deliberative engagement is generally triggered merely by taking on the role of a representative. But it gains special urgency when constituents speak clearly on central matters of political concern. This is not mere theory. In 21st century America, the centuries’ old question of the relationship between the governed and the governors remains pressing. A recent A PEGS Journal

Hearing the Other Side: Deliberative versus Participatory Democracy and Citizen Speak: The Democratic Imagination in American Life

Hearing the Other Side: Deliberative versus Participatory Democracy. By Diana C. Mutz. New York: Cambridge University Press, 2006. 184p.

The core of fiduciary political theory

60.00 cloth,

Deliberative Democracy in America: A Proposal for a Popular Branch of Government

20.99 paper. Citizen Speak: The Democratic Imagination in American Life. By Andrew J. Perrin. Chicago: University of Chicago Press, 2006. 208p.

The search for deliberative democracy in China

45.00 cloth,

The Chinese Communist Party and Deliberative Democracy

19.00 paper. Deliberative democracy is no longer reserved for the theorists. Empiricists now want a part of the action. With their various tools, social scientists are testing and considering both deliberative democratic institutions (e.g., juries, town hall meetings, deliberative polls, and other fora for citizen discussion) and the preconditions of context and character that theorists have proposed are necessary to make deliberative democracy work. Political scientist Diana Mutz and sociologist Andrew Perrin have written new books purporting to bring empirical work to bear on the claims of deliberative democratic theory. Both books are short and illuminating, though their postures as serious challenges to deliberative democratic theory are overstated and potentially misplaced. This failure to undermine the enterprise of deliberative democracy, however, does not prevent each from making a serious contribution to helping us understand how citizens engage in political debate and discussion among themselves in their everyday environments.