Guardians of Legal Order: The Dual Commissions of Public Fiduciaries
Bibliographic record
Abstract
Critics of public fiduciary theory have argued that public officials and institutions cannot properly be considered “fiduciaries” because the duty of loyalty does not permit a fiduciary to serve two masters with conflicting interests. We argue that this critique of public fiduciary theory is overstated because it rests on a false distinction between private and public fiduciary relationships. Conflicts of duty that arise in public fiduciary relationships are not categorically different from those that arise in private fiduciary relationships. In some cases, the fiduciary owes not only discrete “first-order” duties to the beneficiary, but also wider “second-order” duties to the broader public or to public purposes. First-order fiduciary duties are the familiar legal duties that a fiduciary owes to her beneficiary. Second-order fiduciary duties emanate from a separate fiduciary relationship between the fiduciary and public-regarding institutions that have been entrusted to the fiduciary’s administration. Second-order fiduciary duties therefore serve a different and more systemic purpose: they ensure that a fiduciary’s loyalty to her beneficiary does not compromise other institutions entrusted to her care that are designed to provide equal freedom under the rule of law. Part I of our paper uses two examples of fiduciary relationships governed primarily by private law — lawyers and physicians — to illustrate how second-order fiduciary duties operate. While lawyers are required to act in the best interests of their clients (first-order), they also bear a variety of prescriptive and proscriptive duties as officers of the court to promote the just and orderly administration of justice (second-order). Physicians likewise bear both first-order duties to their patients and second-order duties to the broader public, including obligations to prevent serious threats that their patients pose to others. Part II explains how second-order fiduciary duties contribute to the deontic legal structure of public offices and institutions. In particular, clarifying how second-order duties operate in public law helps to explain what kinds of legal obligations public authorities bear to whom and why. Part III demonstrates that national authorities also bear second-order fiduciary duties under international law. As fiduciaries of humanity, states are legally obligated to govern cooperatively so as to protect human rights for the benefit of international society as a whole.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.003 | 0.001 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.003 | 0.001 |
| Scholarly communication | 0.000 | 0.000 |
| Open science | 0.001 | 0.000 |
| Research integrity | 0.000 | 0.001 |
| Insufficient payload (model declined to judge) | 0.000 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one teacher head, not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".