Volume 86, Number 1

April 2011

The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions

Michael S. Kang, Joanna M. Shepherd

Do campaign contributions affect judicial decisions by elected judges in favor of their contributors’ interests? Although the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. relies on this intuition for its logic, that intuition has largely gone empirically untested. No longer. Using a dataset of every state supreme court case in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with an increase in the probability that the judge in question will vote for business litigants. Surprisingly, though, when we disaggregate partisan and nonpartisan elections, we find that a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests exists only for judges elected in partisan elections, and not for judges elected in nonpartisan ones. Our findings therefore suggest that political parties play an important causal role in creating this connection between campaign contributions and favorable judicial decisions. In the flurry of reform activity responding to Caperton, our findings support judicial reforms that propose the replacement of partisan elections with nonpartisan methods of judicial selection and retention.

Changing the People: Legal Resolution and American Democracy

Tabatha Abu El-Haj

The world in which we live, a world in which law pervades the practice of democratic politics—from advance regulation of public assemblies to detailed rules governing elections—is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today.

Exposing this history challenges two core assumptions that drive the work of contemporary scholars who write about the law of the American political process. First, a study of the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of democracy in nineteenth-century America serves as a reminder that elections, political parties, and voting, while critical to democracy, are not the whole deal. It thereby challenges law of democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America.


The Government as Shareholder and Political Risk: Procedural Protections in the Bailout

Matthew R. Shahabian

In the wake of the fall of Lehman Brothers and the surrounding financial instability, Congress passed the Emergency Economic Stabilization Act of 2008, giving the Treasury Department unprecedented power to intervene directly in the financial markets and the economy at large. Though the original intention of the bill was for Treasury to purchase “toxic” assets from financial institutions in order to bring immediate relief to the financial sector, the Treasury Department instead purchased equity from such institutions and became the largest shareholder of corporations like Citigroup, A.I.G., and Bank of America. As a shareholder, the government possessed great informal influence over corporate policy—influence that it did not hesitate to exercise. This influence, paired with the lack of judicial review in the bailout bill, created a new kind of political risk for investors uncertain of whether the government would use its shareholder position to advance its own political goals. This Note analyzes and evaluates this political risk created by government control and explains why neither administrative law nor corporate law constrained the government as shareholder in the financial crisis following Lehman’s failure. Given that the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act fails to address what the government should do in the event of a future financial crisis, this Note suggests a clearer outline for the government’s role in corporate management when it acts as a shareholder and argues for judicialreview to provide procedural protections to shareholders, thereby reducing political risk.

Chevron’s Regrets: The Persistent Vitality of the Nondelegation Doctrine

Michael C. Pollack

Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of nondelegation to rule against the agency interpretation and require that choices bemade by Congress instead.

Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court has manipulated
the application of the Chevron test to find statutory clarity and preclude deference to agencies for exactly this reason. Led by litigants who highlighted the separation of powers implications of the agency’s interpretations, the Court has suggested both that the principles of nondelegation remain a constitutional constraint and that alluding to them, even without resort to some canon of interpretation, is a viable litigation strategy.

This Note exposes and defends the persistent, if unspoken, role played by the principles of nondelegation in the jurisprudence of the administrative state in an era of Chevron deference. It draws a strategic and doctrinal framework from which to challenge agencies’ statutory interpretations and presents a live circuit split involving the authority of the Food and Drug Administration to criminalize certain failures to maintain research records that is a ripe opportunity for applying that framework.

Neutralizing the Gendered Collateral Consequences of the War on Drugs

Marne L. Lenox

As a result of the War on Drugs, women are disproportionately impacted by the civil sanctions resulting from felony drug convictions. While legislation imposing collateral consequences of felony drug convictions does not explicitly discriminate against women, these laws reflect sex-based institutional biases and are thereby unequal in effect. While some statutes permit a disparate impact theory of sex discrimination, there exists no statutory protection for women in the context of collateral consequences. And because the Equal Protection Clause of the Fourteenth Amendment does not adequately protect against gender-neutral legislation that adversely affects women, raising a constitutional claim is not a viable alternative to statutory protection. In response, this Note sets forth two separate—constitutionally sound—proposals for legislative reform. First, I suggest that in light of historic sex discrimination, a remedial sex-based exemption from penalties imposed by collateral consequences is in order. In recognition of the Court’s distaste for sex-based legislation, however, I alternatively recommend that Congress exempt from collateral penalties ex-offenders who serve as the primary caretakers of their children.

The Annulment Committee’s Role in Multiplying Inconsistency in ICSID Arbitration: The Need to Move away from an Annulment-Based System

Dohyun Kim

This Note critiques the current structure and practice of the ICSID annulment mechanism by shifting away from the traditional focus on the ICSID arbitration system as a dispute settlement body and instead analyzing the annulment mechanism’s role in a progressively “judicializing” investor-state arbitration system. Recent developments in ICSID arbitration indicate that, over time, ICSID arbitral tribunals have undergone “judicialization”—that is, they have acquired domestic court–like characteristics enabling them to impact state and individual behavior prospectively, rather than merely to resolve the specific dispute at bar. These developments raise the question of whether the current annulment mechanism, which provides for cancellation of tribunal awards on a strictly limited set of grounds, is capable of accommodating this shift. Although the drafters of the ICSID Convention did not intend to allow an annulment committee, convened after the tribunal’s issuance of an award, to review the substantive merits of that tribunal’s award, annulment committees have previously based their decisions on more expansive substantive review than that permitted under the Convention. This Note argues that in a recent series of decisions, annulment committees appear to be engaging in greater substantive review of tribunals’ awards once again, a fact that triggers a renewed sense that annulment committees are still confused over the proper role of annulment in the ICSID arbitration system. Such confusion has serious implications in that it leads to the production of inconsistent decisions at the annulment level of the ICSID arbitration system, thus adding to the layer of inconsistent decisions produced at the tribunal level. These incoherent decisions may ultimately imperil the legitimacy of the ICSID arbitration system as a judicialized body for shaping prospective state and individual behavior. To strengthen the legitimacy of ICSID arbitral decisions and promote further development of coherent international investment law, I argue that it is critical for ICSID to establish a mechanism with official powers of substantive review.

Adapting to 287(g) Enforcement: Rethinking Suppression and Termination Doctrines in Removal Proceedings in Light of State and Local Enforcement of Immigration Law

Carmen Gloria Iguina

Two legal doctrines govern the suppression of evidence and termination of removal proceedings following constitutional or regulatory violations in immigration enforcement. The Lopez-Mendoza doctrine governs suppression of evidence obtained in violation of constitutional rights. The Accardi doctrine governs suppression of evidence and termination of removal proceedings following violations of regulatory rights. However, the expanding involvement of state and local law enforcement agencies in immigration enforcement, particularly through 287(g) agreements, calls into question the applicability of these two doctrines. This Note analyzes the Lopez-Mendoza and Accardi doctrines in light of the new enforcement context presented by 287(g) agreements; it concludes that reexamination of the Lopez-Mendoza doctrine is required and that full application of the Accardi doctrine is warranted in the 287(g) context.