Fiduciary duty for politicos?

This will be a relatively quick post, busily flipping back and forth between the Grammies and the Pro Bowl. Oh what conspicuous extravagance and such a neat indulgence, especially considering I rarely watch television!

This weekend I had a conversation with a friend about why there isn't a fiduciary duty placed on politicians within the common law tradition. From a practical point of view, the reason seems straightforward. The English common law system arose out of a political tradition tightly controlled by a monarchy and later a "prime" parliamentary minister with powers akin to a monarch. While the reason why there isn't a fiduciary duty at common law is easy to understand, the arguments for why we shouldn't impose one are more difficult to grasp.

We have a fiduciary duty for countless other legally acknowledged relationships, doctors and patients, lawyers and clients, corporate directors and shareholders, even parents and children. Why not for politicians? What could be more important in a liberal democracy than the relationship between citizens and their representatives?

Fiduciary standards were developed in equity courts, courts that could impose severe penalties such as the repossession of property. Standards of care were popular in equity courts. They gave judges reasonable guidance in how to impose what otherwise could have been draconian measures. A fiduciary is the highest standard at equity and at common law. And it still operates that way today in American courts, either at equity in states where the distinction is meaningful or at state common law and as applied by federal courts.

On a federal level, such a duty would have to be included in the constitution but states could easily pass laws imposing a fiduciary standard of care on legislators and officials. We all have seen the damage irresponsible politicians can impose on society and it seems incongruous to have a fiduciary standard of care against a priest and none against a governor or state senator.

There are sticky issues that have to be addressed to make such a duty practicable, namely standing and political considerations of separation of powers. None of these issues seem too lofty to me that they couldn't be addressed on a state-by-state level with commissions composed of state law scholars, politicians and judges.

What I'm reading:

How to Reform Our Financial System, Paul Volcker, New York Times

Follow the Leader, Anna Quindlen, Newsweek

Never Heard That Before, Thomas Freidman, New York Times