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Monday, January 13, 2025
Good Faith in U.S. Constitutional Law
I was invited to draft a chapter about US law for a book about the use of "good faith" standards in constitutional jurisprudence worldwide. I've posted my draft on SSRN. Here is the abstract:
The language of "good faith" and "bad faith" is rarely invoked directly with a specific legal meaning within the constitutional law of the United States. But it would be a mistake to ignore the work motivational analysis and faithfulness to role and the Constitution plays more broadly within constitutional law more capaciously conceived. Many domains of constitutional law interrogate the good faith or bad faith of government actors to test their compliance with constitutional norms--and constitutional practices routinely demand fidelity to the constitutional project itself. From the law of oaths and impeachments to the law of tiered scrutiny associated with the Equal Protection Clause under the Fourteenth Amendment among others, several features of U.S. constitutional law make important demands on public officeholders. More important, perhaps, than the pockets of direct enforcement of good faith norms to U.S. constitutional law, however, is the theory of public office they evince. That so often the Constitution of the United States demands as a primary rule of conduct that public officers act faithfully tells us that there is a fiduciary conception of office pervading the law even when it is not enforced directly as a rule of decision. That brings it closer to private law implementations of good faith than has thus far been appreciated.
Posted by Ethan Leib on January 13, 2025 at 10:47 AM | Permalink
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