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Conflicts of Interest and the Constitution


David Orentlicher


Indiana University - Robert H. McKinney School of Law


Washington & Lee Law Review, Vol. 59, p. 713, 2002

Abstract:     
Increasingly, society has recognized the concerns posed by conflicts of interest. Conflicts of interest may compromise audit reports by accounting firms, courtroom decisions by judges, and treatment decisions by physicians. In several areas of the law, rules have been adopted to contain the influence of conflicts of interest. Codes of professional responsibility limit the ability of lawyers to represent both sides of a dispute, principles of corporate law prevent company directors from trading on inside information, and rules of agency law prohibit trustees from mingling their own funds with those of the trust.

Conflicts of interest also can play a critical role in shaping constitutional doctrine. However, that role is seriously underappreciated. Courts and scholars mention conflicts concerns on occasion, but there have been few analyses of the role of conflicts of interest in constitutional interpretation. Consequently, legal scholarship has not adequately considered how constitutional law does and should take account of such conflicts.

In this article, I offer a fuller discussion of conflicts of interest and constitutional interpretation. In particular, I will show how consideration of conflicts can help us solve three leading puzzles in constitutional theory and doctrine?the lack of a strong theory for separation of powers cases, the tension between judicial supremacy and the political question doctrine, and the question whether the process of constitutional amendment is governed exclusively by Article V. Addressing conflicts of interest can supply the missing theoretical principle for each of these important constitutional problems.

In short, from separation of powers concerns to the political question doctrine and the constitutional amendment process, we can bring more coherence to constitutional law if we judge constitutional questions according to the influence that conflicts of interest might have.

Number of Pages in PDF File: 54

Keywords: Conflicts of Interest, Constitutional Amendment, Constitutional Doctrine, Political Question Doctrine, Separation of Powers

JEL Classification: K19

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Date posted: August 16, 2002 ; Last revised: February 18, 2012

Suggested Citation

Orentlicher, David, Conflicts of Interest and the Constitution. Washington & Lee Law Review, Vol. 59, p. 713, 2002. Available at SSRN: http://ssrn.com/abstract=312440 or http://dx.doi.org/10.2139/ssrn.312440

Contact Information

David Orentlicher (Contact Author)
Indiana University - Robert H. McKinney School of Law ( email )
530 West New York Street
Indianapolis, IN 46202
United States
317-274-4993 (Phone)
317-274-0455 (Fax)

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