Previously posted on SSRN.


Litigation systems create dangers of unfairness. Citizens worry, and should worry, about exploitive settlements in aggregate litigation, potential biases in administrative proceedings, and troubling power imbalances in criminal trials. Public confidence in adjudicative processes has eroded to an all-time low. This Article explores the untapped potential of adding independent watchdog entities to address systemic threats to the integrity of government decisionmaking. These entities, which I call “guardian trustees,” do not fit within the traditional framework of our adversary system. Though guardian trustees already operate in bankruptcy proceedings, they have thus far received little attention in scholarly literature. This Article begins the work of highlighting the contributions of these entities and their promise for restoring confidence in at-risk systems.

In bankruptcy, the United States Trustee serves as an independent guardian trustee of systemic integrity. Congress created the U.S. Trustee Program in response to waning trust in the early bankruptcy system. Building upon the example of the U.S. Trustee, this Article identifies the qualities of effective guardian trustees, and addresses questions relating to their design and powers. It then highlights, as a general matter, elements of systems that may merit incorporation of a guardian trustee, and introduces aggregate litigation as an ideal environment to deploy the concept. Finally, this Article identifies additional situations that could benefit from the creation of a guardian trustee, including administrative agency enforcement and the problems raised by plea bargains and prosecutorial misconduct in the criminal process. In part by identifying and addressing potential pitfalls of expanding the guardian trustee concept and outlining a path to implementation, this Article sets the stage for the American legal system to employ the guardian trustee.