Harvard Law Review: Politicians as Fiduciaries

by - January 22, 2013

When incumbent legislators draw the districts from which they are elected, the conflicts of interest are glaring: incumbents can and do gerrymander district lines to entrench themselves. Despite recognizing that such incumbent self-dealing works a democratic harm, the Supreme Court has not figured out what to do with political gerrymandering claims, which inherently require first-order decisions about the allocation of raw political power — decisions that courts are institutionally ill suited to make. But the same type of agency problem arises all the time in corporate law. And though we do not think courts are any better at making business decisions than political ones, or trust elections alone to align the interests of corporate directors with their shareholders, courts nevertheless play an important role in checking self-dealing by corporate agents. They do so through an enforceable fiduciary duty of loyalty.

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