
Contents
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I. Introduction I. Introduction
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II. Public Offices Are Public Trusts II. Public Offices Are Public Trusts
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A. The Emoluments Clauses A. The Emoluments Clauses
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B. Administrative Law B. Administrative Law
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C. The Law of Judging C. The Law of Judging
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III. How Fiduciary Norms Constrain Public Officeholders III. How Fiduciary Norms Constrain Public Officeholders
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A. Loyalty A. Loyalty
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B. Care B. Care
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C. Deliberation C. Deliberation
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D. Conscientiousness D. Conscientiousness
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E. Robustness E. Robustness
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IV. Implications for Politics and Political Institutions IV. Implications for Politics and Political Institutions
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V. Conclusion V. Conclusion
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Acknowledgments Acknowledgments
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16 Fiduciary Principles and Public Offices
Get accessEthan J. Leib is John D. Calamari Distinguished Professor of Law at Fordham Law School.
Stephen R. Galoob is Associate Professor of Law at University of Tulsa College of Law.
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Published:09 May 2019
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Abstract
This chapter examines how fiduciary principles apply to public offices, focusing on what it means for officeholders to comport themselves to their respective public roles appropriately. Public law institutions can operate in accordance with fiduciary norms even when they are enforced differently from the remedial mechanisms available in private fiduciary law. In the public sector, fiduciary norms are difficult to enforce directly and the fiduciary norms of public office do not overlap completely with the positive law governing public officials. Nevertheless, core fiduciary principles are at the heart of public officeholding, and public officers need to fulfill their fiduciary role obligations. This chapter first considers three areas of U.S. public law whose fiduciary character reinforces the tenet that public office is a public trust: the U.S. Constitution’s “Emoluments Clauses,” administrative law, and the law of judging. It then explores the fiduciary character of public law by looking at the deeper normative structure of public officeholding, placing emphasis on how public officeholders are constrained by the principles of loyalty, care, deliberation, conscientiousness, and robustness. It also compares the policy implications of the fiduciary view of officeholding with those of Dennis Thompson’s view before concluding with an explanation of how the application of fiduciary principles might differ between public and private law settings and how public institutions might be designed or reformed in light of fiduciary norms.
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