Law Commons^™

The Wild Mid-West: Missouri Ethics And Campaign Finance Under A Narrowed Corruption Regime, Dan Schnurbusch

Missouri Law Review

This Note explores some of the history of Missouri’s attempts at ethics reform, recent developments in Missouri’s ethics legislation and federal First Amendment jurisprudence, and how these issues commingle to produce a dangerous climate in which to operate a representative democracy. This Note confronts some of the Supreme Court’s conclusions in both Citizens United and McCutcheon, exposes some of the deleterious societal and legal effects of these rulings, and provides some possible courses of action that Missouri and other states might undertake in order to help lay the groundwork for upholding meaningful campaign finance regulation in the future.

The Mcdonnell Case: A Clarification Of Corruption Law Or A Confusing Application Of Corruption Law, Henry L. Chambers Jr.

University of Richmond Law Review

No abstract provided.

Opening Remarks, John D. Feerick

Fordham Law Review

I salute those who have been involved in the planning of this program and will be moderating, serving on panels, and making presentations throughout the day. I am not quite sure what my present qualifications are to be the opening speaker in such an august gathering of outstanding academics, teachers, lawyers, good government leaders, public servants, and others of distinction. My work these years of my life is largely in the field of social justice and poverty. I am no stranger to the field of law reform, however.

Why Isn’T Congress More Corrupt?: A Preliminary Inquiry, Richard L. Hasen

Fordham Law Review

In the aftermath of the indictment of New York State Assembly Speaker Sheldon Silver on corruption charges, law professor (and recent reformist gubernatorial candidate) Zephyr Teachout published an op-ed in the New York Times entitled “Legalized Bribery.” In it, she argued that campaign contributions are a “gateway drug” to bribes and that politicians are “pre- corrupted” by taking campaign contributions and doing favors for contributors. She wants campaign finance limits, public financing, and limits on outside income for legislators. Although Teachout used powerful rhetoric and suggested worthy reforms, I see her as offering an empirical hypothesis about the relationship between …

Love, Equality, And Corruption, Zephyr Teachout

Fordham Law Review

What is corruption? Unless one takes an absolute (and hard to defend) view of words’ meanings—there is a fixed meaning, it cannot differ—this question can mean different things. What has it meant in the past? What has it meant to judges? What social function does the word play? Does it have any meaning at all, or is it just another word for a different idea? Does the meaning it had historically have any coherence? Does the meaning it has now have any coherence? What do most people think it means? What do most scholars think, or most lawyers, …

Criminal Corruption: Why Broad Definitions Of Bribery Make Things Worse, Albert W. Alschuler

Fordham Law Review

Although the law of bribery may look profoundly underinclusive, the push to expand it usually should be resisted. This Article traces the history of two competing concepts of bribery—the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, when applied to officials other than unelected judges, “intent to influence” is now an untenable standard. This standard cannot be taken literally. This Article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read …

Cross-Border Corruption Enforcement: A Case For Measured Coordination Among Multiple Enforcement Authorities, Jay Holtmeier

Fordham Law Review

The steady increase in cooperation and information sharing among governments is a trend commonly noted in discussions of current anticorruption enforcement. There is no shortage of evidence to support this observation. In 2013 and 2014 alone, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) recognized the cooperation and assistance of foreign law enforcement authorities in at least twenty-three actions brought under the U.S. Foreign Corrupt Practices Act (FCPA or “the Act”). U.S. enforcement authorities—once the world’s primary anticorruption enforcers—increasingly can and do rely on the help of their international counterparts and are pursuing more investigations that run …

The Uncomfortable Truths And Double Standards Of Bribery Enforcement, Mike Koehler

Fordham Law Review

In recent years, Foreign Corrupt Practices Act (FCPA) enforcement has become a top priority for the U.S. government, and government enforcement officials have stated that “we in the United States are in a unique position to spread the gospel of anti-corruption” and that FCPA enforcement ensures not only that the United States “is on the right side of history, but also that it has a hand in advancing that history.”

However, the FCPA is not the only statute in the federal criminal code concerning bribery. Rather, the FCPA was modeled in large part after the U.S. domestic bribery statute, and …

The “Demand Side” Of Transnational Bribery And Corruption: Why Leveling The Playing Field On The Supply Side Isn’T Enough, Lucinda A. Low, Sarah R. Lamoree, John London

Fordham Law Review

The domestic and international legal framework for combating bribery and corruption (“ABC laws”), including both private and public corrupt practices that are transnational (cross border) in character, has dramatically expanded over the last twenty years. Despite these developments, major gaps remain. This Article examines one of the largest systemic gaps: the absence of effective tools to control the demand side of transnational bribery and corruption—the corrupt solicitation of a benefit—especially when it involves a public official.

Keynote Address, Preet Bharara

Fordham Law Review

Thank you, professor, for that introduction. It was quite the introduction. It is true my brother started a very successful online diaper company. It was mentioned that we do not have enough followers on our Twitter feed. My brother is a much more clever member of the family. My recollection is that when he started that company, he had a slogan—he and some folks came up with this slogan for the diaper company—which was—and it was emblazoned on a t-shirt which was one of the few perks of being related to somebody who started a company, and I from time …

Symposium: Fighting Corruption In American And Abroad: Foreword, Jed Handelsman Shugerman

Faculty Scholarship

This Foreword focuses on a few related observations from the symposium. First, it summarizes Teachout's book, which inspired this symposium and which relied on history to undermine Citizens United. Second, it suggests that a more recent case in this Court's Term, Williams-Yulee vs. Florida Bar,⁸ also erodes Citizens United, at least a bit, by recognizing a compelling state interest in combating the appearance of corruption and bias in a new context: by embracing that corruption lurks in gray areas and the banality of campaign fundraising. Third, Pamela Karlan and Samuel Issacharoff once observed that money in politics …

Fighting Corruption In America And Abroad, Jed Handelsman Shugerman

Fordham Law Review

The exchanges at the symposium and these Articles highlight the gap between public opinion and legal culture on the definition of corruption and the problems that flow from that gap. Teachout’s and Lessig’s legal argument that corruption can be institutional and banal roughly corresponds with the public’s moral intuition. Conversely, Lessig’s and Hasen’s intuitive moral reaction—that corruption is the evil of quid pro quo—maps onto the legal conclusion of the U.S. Supreme Court in Citizens United v. FEC that corruption is narrowly defined as quid pro quo. Note the reversal of moral and legal positions: Teachout and Lessig’s legal …

Corrupt And Unequal, Both, Lawrence Lessig

Fordham Law Review

Rick Hasen has presented the issue of money in politics as if we have to make a choice: it is either a problem of equality or it is a problem of corruption. Hasen’s long and influential career in this field has been a long and patient struggle to convince those on the corruption side of the fight (we liberals, at least, and, in an important sense, we egalitarians too) to resist the temptation to try to pass—by rendering equality arguments as corruption arguments, and to just come out of the closet. Hasen had famously declared that the corruption argument supporting …

Combatendo A Corrupção Nos Estados Unidos, Paul Marcus

Faculty Publications

The article discusses the problematic of the fight against the corruption by the criminal justice system of the United States, mainly the white-collar crimes. It is emphasized, first, that in most of the cases does not result in trial, but in plea bargains, and, second, in many cases the encouragement from an undercover agent has served as an effective defense instrument. Finally, it is discussed the problematic of the use of information obtained from the technological devices and its probable violation to the right privacy.

This article is in Portuguese.

Corruption In Developing Countries: What Keeping It In The Family Means For Everyone Else, Tonita Murray

Osgoode Hall Law Journal

The United Nations estimates that 30 per cent of all international development funding is lost to corruption. Identifying and understanding the dynamics of how such corruption occurs at the ground level could help to reduce opportunities for the diversion of funds from public purposes to private uses. An analysis of two highly publicized corruption cases in Kenya and one in Afghanistan identifies some common characteristics that may also be present in other cases around the world. The characteristics fall into four categories: (1) political, social, and cultural; (2) governance; (3) people; and (4) international. Different understandings of corruption, weak government …

The Future Of Governmental Ethics: Law And Morality, Jon L. Mills

Jon L. Mills

Based on a speech presented at the 16th International Symposium on Economic Crime, Cambridge University, England September 13-19, 1998.

The Price Of Corruption, Usha Rodrigues

Scholarly Works

The Supreme Court recently held that campaign contributions under $5200 do not create a “cognizable risk of corruption.” It was wrong. This Essay describes a nexus of timely contributions and special-interest legislation. In the most noteworthy case, a CEO made a first-time $1000 donation to a member of Congress. The next day that representative introduced a securities bill tailored to the interests of the CEO’s firm.

Armed with this real-world account of how small-dollar campaign contributions coincided with favorable legislative action, the Essay reads McCutcheon v. Federal Election Commission with a critical eye. In McCutcheon the Supreme Court assumed that …

House Of Cards: How Rediscovering Republicanism Brings It Crashing Down, Jonathan E. Maddison

Catholic University Law Review

Using Frank Underwood’s maniacal political journey in the Netflix series House of Cards as an example of what is wrong with American politics, this article argues that the Supreme Court’s misapplication of First Amendment principles in Citizens United and other key campaign finance cases plays a large and problematic role. Providing an extensive historical overview of republicanism and First Amendment jurisprudence, this article suggests that a return to republican ideals, while not perfect, is both the solution and proper tool of analysis to be used by the Supreme Court for campaign finance cases and beyond.

On The Comparative Study Of Corruption, Franklin E. Zimring, David T. Johnson

Franklin E. Zimring

No abstract provided.

In All Fairness: Using Political Broadcast Access Doctrine To Tailor Public Campaign Fund Matching, Andrew V. Moshirnia, Aaron T. Dozeman

University of Michigan Journal of Law Reform

Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, …

When Rhetoric Obscures Reality: The Definition Of Corruption And Its Shortcomings, Jessica Medina

Loyola of Los Angeles Law Review

Due to public scorn after the unraveling of the Watergate scandal, the Supreme Court considered the constitutionality of the Federal Election Campaign Act’s restrictions on political contributions and expenditures. Buckley v. Valeo established that no legitimate government interest existed to justify restrictions on campaign expenditures, and only the prevention of corruption or the appearance of corruption could justify restrictions on campaign contributions. Since then, the Court has struggled to articulate a definition of corruption that balances First Amendment protections with the potential for improper influence. This Article argues that the Court’s current definition of corruption is too narrow, and proposes …

The Neomercantilist Fallacy And The Contextual Reality Of The Foreign Corrupt Practices Act, Philip Nichols

Philip M. Nichols

The Foreign Corrupt Practices Act is domestic legislation and should be analyzed as such. This article addresses a persistent failure in analysis of the Act, by scholars and policymakers alike. Many discussions of the Act approach it from a neomercantilist perspective. This approach contains three flaws. First, whereas neomercantilism envisions manipulation of the market to give advantage to national champion industries, the Foreign Corrupt Practices Act was adopted for the purpose of strengthening and enhancing the integrity of the global market. A neomercantilist perspective is contrary to the purpose of the Act. Second, this article shows that neomercantilism fundamentally misunderstands …

Deferred Corporate Prosecution As Corrupt Regime: The Case For Prison

Lawrence E. Mitchell

Abstract: This paper looks at the growing phenomenon of deferred corporate criminal prosecutions from a new perspective. The literature accepts the practice and is largely concerned with the degree to which efficient and effective criminal deterrence is achieved through pretrial diversion. I examine the practice and conclude that it presents, from a structural perspective, a case of a corrupt law enforcement regime centered in the United States Department of Justice. The regime works in effective –if unintentional-- conspiracy with corporate officials to produce an inefficient enforcement regime that disregards democratic processes and threatens a loss of respect for the rule …

Fraud Is Already Illegal: Section 621 Of The Dodd-Frank Act In The Context Of The Securities Laws, Nathan R. Schuur

University of Michigan Journal of Law Reform

In the aftermath of the financial crisis, lawmakers and the public focused on abuses in the securitization industry. Abacus, a Synthetic CDO created by Goldman Sachs & Co., became a symbol of what many felt was a corrupt system when it became known that Goldman and Fabrice Tourre, a Vice President at its Correlation Trading Desk, had assisted a hedge fund in designing the security to fail. Perceived failings of the securities laws to prevent transactions like Abacus spurred Congress to enact Section 621 of the Dodd-Frank Act, which prohibits conflicts of interest in asset-backed securitizations. But the law is …

Human Rights Provisions In Free Trade Agreements: Do The Ends Justify The Means?, Meredith Kolsky Lewis

Journal Articles

Numerous Free Trade Agreements (FTAs) contain provisions imposing human rights-related obligations, particularly in the case of agreements between the European Union and a developing country (often a former colony). Such obligations often consist of hortatory “best endeavors” language rather than legally binding provisions. Even the small number of provisions that are binding are very rarely enforced. Furthermore, even if an FTA features human rights-related provisions, it may contain other terms that have negative implications for human rights. Thus, including human rights provisions in FTAs will not necessarily result in better human rights outcomes. There are additional reasons to be cautious …

Can Afghanistan Live Up To The Expectations Of The Extractive Industries Transparency Initiative's Expectations And Achieve Compliant Status To Help Improve Good Governance In Its Natural Resources Sector?, Parwiz Esmati

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Map Is Not The Territory: How South Africa Followed The Anti-Corruption Roadmap And Got Lost Along The Way, George Langendorf

University of Baltimore Journal of International Law

This paper charts the development of the anti-corruption roadmap and considers whether it has been effective in South Africa. Part I begins with an overview of the FCPA, the first and most influential anticorruption law. Part II reviews the multilateral treaties and conventions that proliferated in the 1990s and early 2000s and that outline the contemporary anticorruption roadmap. Part III focuses on the efforts of South Africa to follow the roadmap, and reviews the laws and institutions it established after acceding to the instruments and treaties described in Part II. Part IV looks at what happened next, summarizing four major …

Rebuilding Bell, California: Review And Recommendations For Continued Improvement Of Accountability, Oversight, And Transparency, Jennifer Rodgers, Jacob Watkins

Center for the Advancement of Public Integrity (Inactive)

In 2010, Bell, California was a small city with a big corruption problem. Its city manager at that time, Robert Rizzo, had developed a plan to enrich himself at the city’s expense, and covered his tracks by involving numerous other city officials in his corrupt scheme, including the city councilmembers who were supposed to serve as a check on Rizzo’s power. Because virtually all of Bell’s top-level officials ended up implicated in the criminal conduct, the limited number of checks and balances built into Bell’s governing structure failed. And because Bell did not have any formal anti-corruption mechanisms in place …

The Trials Of John Sampson And Thomas Libous, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

This July, two high-ranking New York State Senators faced trials for public corruption. Both were found guilty. Just the most recent in a long list of recent corruption scandals, the details of their cases provide a window into the culture of impunity in Albany.

Profile In Public Integrity: Lawrence Yealue, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Lawrence Yealue is the West Africa Representative of Accountability Lab, an incubator for local-level integrity initiatives with an emphasis on generating sustainable development. Based in Monrovia, Liberia, Yealue’s career has centered on community-driven approaches to responsible reform. His previous work includes serving as Electoral Commissioner for the Liberian Student Association-Ghana, National Coordinator for the World Youth Spirit Council, Project Director for the Rotary Club of Wisconsin, and as a volunteer for Africa Peace’s HIV/AIDS Education & Peace Initiative. Yealue also founded and directs the Liberian Youth for Peace & Development community group. Yealue holds a B.A. in Human Resource Management …