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 court-led 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.

What should judges do in ordinary business litigation when the requirements of the law and the demands of justice seem to conflict? This question comes up all the time. The plaintiff has a sympathetic claim with a technical defect or gap in proof. The defendant’s conduct seems lawful but unfair or technically illegal but entirely reasonable. Conventional legal reasoning leads to one conclusion; gut instinct or sophisticated policy analysis leads to another. Which takes priority?

In practice, of course, judges will strive for a decision that is consistent with both law and justice, adjusting their definitions of law and justice as needed to create an overlap. Failing that, judges will lean one way or another depending on a host of factors. But, in theory, what should judges do when law and substantive justice seem at odds? How should judges be encouraged to resolve the conflict?

Opinion is divided on this issue. There are two leading schools of thought. Each has its preferred metaphor for the judicial role. One philosophy, which sees judges as fiduciaries or guardians of the people, believes that judges should prefer substantive justice over law. The opposing philosophy sees judges as agents or servants of the law who must do what the law requires.