James Wilson, ‘Does Centralized Private Power Corrode the Rule of Law?’

Abstract:
It is difficult to define the appropriate domains of private and public power, much less to maintain a balance that preserves republican virtues and institutions. This essay revisits the problem of regulatory capture by asking if centralized private power corrodes the rule of law.

The first part of the essay attempts to crudely define ‘centralized private power’ and explores several definitions of ‘rule of law’ to find the definitions that are most relevant to answering the question. It also explains that ‘corrosion’ is a useful concept, because that term avoids the Supreme Court’s crabbed conception of ‘corruption’. The second part of the essay provides several recent examples of a double standard in prosecutorial discretion – severity for the poor, leniency for the rich – to support its hypothesis that recent administrations have undermined the ‘rule of law’. In other words, they have not faithfully executed the law.

Wilson, James G, Does Centralized Private Power Corrode the Rule of Law? (June 24, 2016). Cleveland State Law Review, Vol 64, No 2, 2016.

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