Wilson argues that profound wealth inequality invariably creates an unstable, dual legal system. The rich become largely immune from criminal sanctions, civil regulations, and taxation; the middle class carries the tax burden while the criminal justice system hammers the poor. This perpetuates the fear of the Framers that America would decline if it ever adopted a class system similar to the European class structure, which was far more drastic. The infamous revolving door between the corridors of public and private power guarantees regulatory capture; high-level bureaucrats, members of Congress, and military leaders flock to the private sector, where they are fulsomely rewarded for past and future services (an inspiration for leaders still travailing in the public sector)…This Essay proposes a useful set of definitions of crucial concepts containing multiple meanings and then applies those concepts to a few examples. Part I explores different conceptions of "private power." Part II evaluates different theories of the "rule of law," analyzing their strengths and inadequacies. Part III develops the terms "corrosion" and "corruption," explaining how and why the Court erred in Citizens United by creating an untraditional definition of "corruption" that reduced this fundamental threat to republican norms and institutions to the rarely enforced crime of bribery. The Essay employs the term "corrosion" instead of "corruption" to escape the permutations and emanations of the Court's constricted "corruption" doctrine. A broader conception of "corrosion" also reminds us how and why our problems run much deeper than competing interpretations of the First Amendment. Finally, Part IV provides specific examples of legal and market corrosion, caused by centralized private power's evasion of the rule of law.
James G. Wilson,
Does Centralized Private Power Corrode the Rule of Law?,
64 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol64/iss2/6