John D. Calamari Distinguished Professor of Law
President Trump touts his experience as a CEO, but there’s more to running a business (and a country) than the art of the deal. CEOs have fiduciary obligations to their organizations and their shareholders, a bond of trust that most Americans would like to share with their elected officials. This “fiduciary political theory,” as Fordham Law Professor Ethan Leib calls it, casts the Trump presidency in a whole new light. “The Emoluments Clause, for example, reflects public fiduciary obligations. Those obligations cast new light on the conflicts of interest with Trump’s businesses—and looking at the presidency through a fiduciary lens may help us understand this administration better,” says Leib.
Trump and what he owes the American people may sound like a far-out topic for an expert in contract law and legislation, but to Leib it fits in well with the overall theme of his scholarship: “I’m preoccupied with relationships,” he says. “That includes the relationship between those who govern and those who are governed.”
Leib received a B.A., M.A., and Ph.D. from Yale University, a J.D. from Yale Law School, and an M.Phil. in political thought and intellectual history from Cambridge University in England. He made sure to balance this extra dose of book learning with practical experience. Before teaching in contracts, legislation, and regulation at University of California–Hastings and then at Fordham Law, Leib clerked for Chief Judge John M. Walker, Jr., of the United States Court of Appeals for the Second Circuit. He also worked as an associate at the firm of Debevoise & Plimpton. This juggling act between the heady and the hands-on continues to play out in his scholarship. “My work toggles back and forth between trying to understand the law and also struggling with bigger questions about what the right kind of democracy is,” says Leib, the new John D. Calamari Distinguished Professor of Law. “I’m satisfying my twin urges of pursing big questions and having something to say about what’s happening in our daily lives.”
Leib’s first book encapsulates this dual approach. Deliberative Democracy in America: A Proposal for a Popular Branch of Government, which he wrote in 2004, explores a form of democracy whose citizens come together over issues and make policy through deliberative decision-making and majority rule. “It’s not just voting,” says Leib. “The idea is that arguments and deliberation give laws their legitimacy.” The book proposes that assemblies of random citizens debate and vote on issues, essentially becoming a fourth branch of government. The laws produced by this “popular branch” could be vetoed by the executive and legislative branches, but at least it would give people a voice of their own and help circumvent some of the sway money and power have over government. “The popular branch would complement the rest of the government already in place,” he says.
The next book Leib wrote had little to do with politics, at least the electoral kind. Friend v. Friend: The Transformation of Friendship—And What the Law Has to Do With It, (Oxford University Press, 2011), made the case that friendships should come with legal protections. If the law seeks to be relevant in how we structure our families, Leib argued, why shouldn’t it protect other aspects of our private lives? “Law takes an interest in our families, the centerpiece of civilization. But in the lives people live these other relationships do a lot of good for them, too, and for civil society as a whole,” he says. “The obvious counterpoint is that the beauty of friendship is private, but I don’t agree that it should be wholly insulated from the law. Friendships could benefit from the legal scaffolding that we give to families, and we risk thinning out our intimate sphere without some help from public policies designed with sensitivity and attention.”
Leib, who has written for a broader audience in the New York Times, USA Today, Policy Review, Washington Post, New York Law Journal, The American Scholar, and The New Republic, has renewed his focus on politics with a number of papers elaborating on his fiduciary political theory. The most recent paper, “Fiduciary Political Theory: A Critique” for the Yale Law Journal, appeared in 2016, when a Trump presidency still seemed like a long shot. Now, the article feels eerily prescient. “I didn’t plan it this way, but I feel confident this will be a topic worth pursuing in coming years,” he says.