Faculty, students, and guests gathered to examine Lawson’s interpretation of the fiduciary role of the US Constitution.
The Boston University School of Law community gathered recently for a symposium to honor Philip S. Beck Professor of Law Gary Lawson for the publication of his most recent book, co-authored with Guy Seidman, entitled “A Great Power of Attorney”: Understanding the Fiduciary Constitution.
The book explores how to interpret government powers and limitations in the context of a document intended to establish a trust relationship between the government and the governed—a fiduciary Constitution. The authors draw upon the background of fiduciary legal and political theory, which would have been familiar to the founding generation from both its education and experience, to argue that the Constitution is best read as a grant of limited powers to agents of the national government to manage some portion of the affairs of “We the People” and its “posterity,” who are identified in the Constitution’s Preamble as the principals and beneficiaries of the instrument. The background norms that accompany fiduciary instruments, such as duties of loyalty, care, impartiality, and personal exercise of discretionary authority, shed light on many problems of constitutional interpretation.
The Honorable Paul J. Liacos Professor of Law James Fleming opened the event by citing Lawson’s achievements as a “productive scholar, excellent teacher, and magnanimous person,” noting that this was the third symposium held for Lawson since 2011, when the school began the symposia series to celebrate faculty scholarship.
To begin the discussion, BU Professor of Law and Michaels Faculty Research Scholar Tamar Frankel traced the historical and practical understanding of fiduciary law. She argued that humans need each other, but relying on each other can lead to an imbalance of power, which may lead to an abuse of the weaker party. She noted that fiduciary law reflects and responds to that power structure: “No power can come without obligations.” She praised the large project undertaken by the book: “Understanding the fiduciary Constitution goes to understanding constitutional power.”
Ethan Leib, Fordham University School of Law’s John D. Calamari Distinguished Professor of Law, spoke about different approaches to the way we view fiduciary relationships. He argued that the book requires more effort to move from a thought experiment to a reality, as many questions about the application of fiduciary theory to real-world governance need to be answered before the abstract arguments of the book can be evaluated. He, along with Professor Frankel, also raised questions regarding whether fiduciary understandings of 1788 are decisive for modern interpreters, especially if fiduciary law itself changes over time.
BU Law Professor of Law emeritus, Larry Yackle, a long-time colleague of Lawson’s, acknowledged that although he has a different opinion towards proper interpretation of the Constitution than Lawson does, the book is “very careful to circumscribe this work and to say what it is, and what it is not.” He presented three questions to Lawson: “How radical do you think the book is? How radical do you think the thesis is? And where do you think the primary effects of fiduciary principles lies? Is it in forming the meaning of particular provisions, or is it the principles inform the whole of the Constitution?”
Lawson closed the symposium by addressing the questions raised by his colleagues. In response to comments about how fiduciary laws can change over time, Lawson noted that he and his coauthor Guy Seidman, professor of law with the Interdisciplinary Center, Herzliya in Israel, were taking a snapshot of how the Constitution was understood at a particular historical moment. “We didn’t set out to discuss judicial review or political theory,” he said. “We tried to provide an interpretive framework. If one views the Constitution as a fiduciary document, what follows? How that slots into a real-world theory of interpretation is a project that would take a lifetime.”
Reported by Natalie Carroll (COM’)
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