Case Comments

Corporate Law

Corporate Political Speech: Who Decides?

Vol. 124 No. 1 In Corporate Political Speech: Who Decides?, Professors Lucian Bebchuk and Robert Jackson consider the implications of Citizens United for corporations and corporate governance. They argue that political speech decisions – whether and how to engage in corporate political speech – differ significantly from and should not be subject to the rules governing ordinary business decisions for which corporate decisionmaking structures were designed. Professors Bebchuk and Jackson develop proposals for corporate law rules designed to align political speech decisions with shareholder interests and protect dissenting minority shareholders.
Fourteenth Amendment

Electing Judges, Judging Elections, and the Lessons of Caperton

Vol. 123 No. 1 Few Supreme Court cases inspire a bestselling novel before they’re decided. But Caperton v. A.T. Massey Coal Co. did: the story of how a big damages verdict prompted the head of a large corporation to pour millions of dollars into a judicial election for the court that would hear the company’s appeal inspired John Grisham just as it appalled the Court. Caperton calls to mind far more than the plot of a page-turner. This Comment shows how Caperton also taps into several long-running themes in the law of democracy – the set of doctrines and jurisprudential positions that create the structure within which politics, elections, and governance occur.
Election Law

Relinquished Responsibilities

Vol. 123 No. 1 So if . . . it violates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, then – quite simply – the practice of electing judges is itself a violation of due process. – Republican Party of Minnesota v. White, 2002 These words were included in the Court’s opinion in Republican Party of Minnesota v. White not to endorse but to mock the idea that judicial elections violate due process. The constitutionality of judicial elections was not the issue before the Court in White; nor was this issue directly before the Court in Caperton v. A.T. Massey Coal Co., the topic of this Comment. Yet in both cases, and in others the Court has declined to hear, the lurking question that is being ignored is whether present-day judicial elections, with their untoward emphasis on campaign finances, can be reconciled with the due process guarantee of fundamental fairness.
Election Law

What Everybody Knows and What Too Few Accept

Vol. 123 No. 1 No one believes that every campaign contribution would tend to corrupt the judicial process. If campaigns were cheap, if contributions were small, if contributors were many or unknown – in any of those cases, the fact that money was contributed to a judge’s campaign could not lead anyone reasonably to believe that the contribution would effect any particular result. In these cases, money would be benign, and the raising of money in these cases should not undermine trust in the institution of the judiciary, at least for any reasonable soul.