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Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care that the Laws be faithfully executed” and take an oath or affirmation to “faithfully execute the Office of President.” These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons. This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up through the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but to a vast number of more ministerial officers, too. We contend that it imposed three interrelated requirements on officeholders: (1) a duty not to act ultra vires, beyond the scope of one’s office; (2) a duty not to misuse an office’s funds or take unauthorized profits; and (3) diligent, careful, good faith, honest, and impartial execution of law or office. These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution, for example, that limit Presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal purposes. So understood, Article II may thus place some limits on the pardon and removal authority. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes, and perhaps constraining agencies’ interpretations of statutes to pursue Congress’s objectives. Our conclusions undermine imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring the President’s faithful execution.

\"Fiduciary political theory\" is a burgeoning intellectual project that uses fiduciary principles to analyze public law. This Essay provides a framework for assessing the usefulness and limitations of fiduciary political theory. Our thesis is that fiduciary principles can be fruitfully applied to many domains of public law. However, other domains are incompatible with the basic structure of fiduciary norms. In these domains, fiduciary political theory is less likely to be viable. One contribution of this Essay is to describe the underlying structure of fiduciary norms. We identify three features of these norms that differentiate them from norms of contract, tort, and criminal law. First, fiduciary norms impose deliberative requirements: they make specific types of demands on an agent's deliberation in addition to her behavior. Second, complying with fiduciary norms requires a special conscientiousness. Living up to a fiduciary obligation depends not only on how an agent behaves and deliberates, but also on whether she does so for the right reasons. Third, fiduciary norms impose \"robust\" demands, which require the fiduciary to seek out and respond appropriately to new information about the interests of her beneficiaries. We use these insights to assess applications of fiduciary principles to theories of judging, administrative governance, and international law. A fiduciary theory of judging can explain certain aspects of the norms of judging better than alternative theories offered by Ronald Dworkin and Judge Richard Posner. The viability of a fiduciary theory of administrative governance is an open question. Whether this kind of fiduciary political theory is superior to alternatives (like the instrumentalist theory of administrative governance developed by Adrian Vermeule) turns on a deeper dispute about whether administrative law reflects a culture of justification. Finally, a fiduciary political theory of international law (like the one defended by Evan Fox-Decent and Evan Criddle) is unlikely to succeed. Fiduciary norms are structurally incompatible with the domain of international law because compliance with international-law norms is a function of how states behave, rather than how they deliberate or why they behave as they do.

This book investigates whether the theory of deliberative democracy - developed in the West to focus democratic theory on the legitimation that deliberation can afford - has any application to Chinese processes of democratization. It discovers pockets of theory useful to guide Chinese practices, and also Chinese practice that can educate the West.

For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. This paper reveals how the law governing fiduciary relationships sheds new light on this age-old pursuit, and therefore, on the very nature of the judicial office itself. The paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insights into what it means to be a judge in a democracy, while providing practical guidance in resolving a range of controversial legal issues surrounding judicial performance, such as judicial ethics at the Supreme Court, campaign contributions in state judicial elections, and the role of public opinion in constitutional interpretation.

The average citizen's point of contact with the judicial system as a litigant is, most likely, in the nation's municipal, county, or local courts. Whether she is contesting a traffic infraction, being charged with a misdemeanor, being cited for a violation of a local ordinance, or in a dispute with a neighbor or landlord, the average citizen is probably more likely to find herself in what might be called a \"local court\" than in a federal or high-level state court. Setting aside the controversy surrounding staffing village and town courts (which too often have nonlawyers with almost no legal training or knowledge serving as adjudicators), legal scholars have almost universally ignored the law in local courts, favoring the study of federal courts and state appellate courts. Much like the drunk man who looks under the lamppost for his lost keys at night because it is the only place he has the light to see, so too the legal scholar often studies published cases because they are available from databases at her fingertips. It is also likely that the sheer diversity of local courts, the limitations on their subject matter jurisdiction, and the complexity of their organization nationwide render it hard to study these courts as a unitary class. The diversity and the lack of easily accessible decisions, however, cannot justify the lack of attention to how local judges should behave when faced with statutory questions, a task that comprises the day-to-day work of our local courts. These public officials are the face of law and justice to citizens in our democracy. What they do in their courtrooms when applying statutes is probably more relevant to citizens' sense of the legitimacy of our legal system and the rule of law than the vast majority of the Supreme Court's business at One First Street.

This Article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites, which reflect more collaborative dimensions of interbranch interaction. This Article begins to fill that void, and in so doing, frames practical and theoretical lessons for legislative, judicial, and scholarly audiences. More specifically, this Article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels.

Many scholars and judges attempt to harmonize legal practices of contracting with the social practice of promising in ordinary life. This article explores an alternative genealogy of contract in traditional social practices that track many of contract's core norms: taking vows and oaths. Without denying that promissory morality infiltrates modern contract, contract-as-vow-or-oath can expose by way of a supplementary account why some contract rules work as they do and can take some pressure off of a more unitary promissory theory in justifying, explicating, and reforming contract law.

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the \"unified model,\" according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that elected judges and appointed judges should actually interpret statutes differently. We explain and defend that view and explore some of its implications and limits. We identify categories of cases in which the argument for interpretive divergence is at its strongest. We also show how the possibility of interpretive divergence might illuminate several specific doctrinal problems related to judicial federalism and judicial review of agency action.

Too often, popular political power — whether it is in the form of direct democracy or other more innovative forays in participatory or deliberative democracy— presents itself principally as a counterweight to the political power parties wield. Yet setting up \"popular democracy \"and \"party democracy \"in opposition to one another in the American political landscape is not only unnecessary but also pathological: this oppositional posture risL · the ossification of party democracy and keeps popular democrats insulated from the substantial improvements the power of parties could bring to the polity. This Article, accordingly, seeks to enrich both party democracy and popular democracy by showing how each might draw strengths from the other, and how each needs the other to function more effectively. A new literature in political theory explores the central role of partisanship in democratic functioning, and we will deploy that theory in service of some practical applications in institutional design here. We have been involved — on the ground level — in two recent policy conversations that really would have been improved with a complementary vision of the parties and the people.We could have better exercises of party democracy and popular democracy, if only we started to see how they might be brought into pragmatic symbiosis.

This Essay christens a new canon into the doctrines of statutory interpretation, one that can counter the too-powerful canon that has courts imposing norms against redundancy in their readings of statutes. Judges engaging in statutory interpretation must do a better job of recognizing how and why legislatures choose not to draft with perfect parsimony. Our Essay highlights the multifarious ways legislatures in federal and state governments self-consciously and thoughtfully-rather than regrettably and lazily-think about employing \"belt-and-suspenders\" efforts in their drafting practices. We then analyze courts' disparate efforts to integrate a belt-and-suspenders canon into their thinking about anti-surplusage rules and other textual canons. By sketching a promising future for this new canon, we hope to draw judicial practice closer to legislative practice and to enhance the enterprise of statutory interpretation for textualists and intentionalists alike.