June 2013 Vol. 111 No. 8 THE REVIEW
ARTICLES

Defining Corruption and Constitutionalizing Democracy

Deborah Hellman

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on the giving and spending of money in connection with elections only when they serve to avoid corruption or the appearance of corruption. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more foundational issue: Should the Court define corruption at all?

This Article argues that it should not. Corruption is a derivative concept, which means that it depends on a theory of the institution involved. In order to define corruption of an official or institution, one needs an account of how the official ought to act or how the institution ought to function. Defining legislative corruption, therefore, requires a theory of the legislator's role in a well-functioning democracy. The Supreme Court's campaign finance case law has ignored the implications of this widely shared and deceptively simple idea.

Drawing an analogy to apportionment and gerrymandering cases, this Article argues that there are important reasons for the Court to defer to legislative judgment about how best to conceive of a legislator's role in our democracy. Those cases counsel that where both individual rights and questions of democratic theory are at issue, the Court should be cautious about whether judicial intervention is appropriate. Just as the Court is hesitant to define good government, so too it should be reluctant to define corruption.

  READ MORE    //  VIEW PDF

Incomplete Wills

Adam J. Hirsch
READ MORE    //  VIEW PDF
NOTES

A Model for Fixing Identification Evidence after Perry v. New Hampshire

Robert Couch

Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first time in thirty-five years and ultimately declined to modify the outdated reliability framework. This Comment analyzes Perry in light of innovations by states to improve eyewitness evidence procedures. While the Perry decision failed to address critical problems with the reliability test, the Court indirectly pointed to ways in which the old standard must be fixed.

  READ MORE    //  VIEW PDF

Bargaining and the Right to Counsel at Bail Hearings

Charlie Gerstein
READ MORE    //  VIEW PDF

Statutory Interdependence in Severability Analysis

Rachel J. Ezzell
READ MORE    //  VIEW PDF
& Other Current Events

Cultivating Inclusion

Twenty-five years ago, law schools were in the developing stages of a pitched battle for the future of legal...

Aftermarketfailure: Windows XP's End of Support

"After 12 years, support for Windows XP will end on April 8, 2014." So proclaims a Microsoft website with...

Globally Speaking—Honoring the Victims' Stories: Matsuda's Human Rights Praxis

Globally speaking, international law and the vast majority of domestic legal systems strive to protect...

Toward A Multiple Consciousness of Language: A Tribute to Professor Mari Matsuda

I am thrilled to be part of this commemoration of the twenty-fifth anniversary of Professor Matsuda's...

House Swaps: A Strategic Bankruptcy Solution to the Foreclosure Crisis

Since the price peak in 2006, home values have fallen more than 30 percent, leaving millions of Americans...
MAILING LIST
Sign Up to Join Our Mailing List