Daniel Harris (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Judges as Agents of the Law (Mitchell Hamline Law Journal of Public Policy And Practice,Vol.41, Article 1, 2020) on SSRN. Here is the abstract:
A spate of recent scholarship uses fiduciary metaphors to model the roles of various public officials. One such article in the California Law Review posits that judges are fiduciaries of the people and therefore have the power (akin to that of corporate directors) to do whatever is in the best interests of the people, even if that means disregarding precedents or statutes. By contrast, a more traditional model sees judges as agents or servants of the law and therefore bound to follow the law rather than use it to advance their preferred policies.
This essay examines both approaches with particular emphasis on their use in ordinary business litigation. The essay concludes that telling judges to act as fiduciaries of the people encourages courted social change. Telling judges they are agents of the law is more consistent with the judicial oath, the rule of law, and the role of courts in the American democratic system.
