Access, accountability and authority: Corruption and the democratic process

Democratic systems face the challenge of sustainingtheir political authority while simultaneouslyproviding access to the political system for theircitizens, and ensuring existence of mechanisms for theformal and political accountability of those inoffice. The connections between these threecomponents, and between them and corruption, arecomplex. The paper suggests ways in whichaccountability may undermine authority through theblurring of distinctions between formal and politicalaccountability, by ham-stringing politicalinstitutions, by creating incentives for corruptpractices, and by politicising accusations ofcorruption. Access can be similarly destabilising andcorrupting, where trust is low and compliance withrules weak; and a basic problem with securing highlevels of trust is that the materials from which suchtrust is manufactured are often the very things whichaccountability mechanisms regard as corrupt – localnetworks, clientelism, and personal loyalties andfriendships. In democratising states, attackingthese elements can eradicate rather than enhance thebasis for well-regulated access.Different democratic systems have evolved differentways of balancing these three components. Theparticular institutional form the balance takes willhave a major impact on the types of corruption thesystem will face, and on the solutions which areappropriate. However, the tendency in internationalcircles is for one highly idiosyncratic understandingof this balance to hold sway, with potentiallydestabilising consequences when applied to theanalysis of corruption, especially in democratisingstates. The paper concludes that attempts to reduce corruptionand increase accountability by increasingparticipation and access are flawed. Access mayincrease the risk of corruption, while accountabilityremains a classic public good on which free-ridingwill be widespread. Corruption control in democracieswill not be solved by more democracy – indeed, itmight need less.     

Patients as consumers: courts, contracts, and the new medical marketplace

The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's once promising answer--managed care--has been politically ravaged, and consumerist solutions are now winning favor. This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers' prices and providers' actual costs. Perhaps because they do not understand the healthcare market, courts generally enforce these contracts. This Article proposes legal solutions to the plight of the patient-as-consumer and asks what that plight tells us about market solutions to the health-care quandary.     

A Dutch Sodom and Gomorrah: Degenerates,moralists and authority in Yerseke, 1870–1914

In 1870, the Dutch state privatized several oyster banks in Zeeland waters. This measure brought about a rapid capitalization of the oyster industry. The Zeeland town of Yerseke soon became the national centre of oyster farming and trade. Initially, oyster farming was quite successful. Yerseke turned into an affluent country town which attracted hundreds of migrants. When by the mid-1880s serious problems assailed the oyster industry, a large number of people left the town, although newcomers were continually arriving. In the wake of these developments the community's social organization changed drastically and social control withered. Fights, drunkenness and theft were part and parcel of everday life. In the course of the 1890s, this social disorganization was checked by the civilizing missions of churches and the disciplining offensives of the local authorities and police. Perhaps even more important was the increasing social integration of the village community. The present article aims to uncover the dynamics and interrelations of these processes.     

The Priority of Politics and Procedure over Perfectionism in Penal Law, or, Blackmail in Perspective

Criminal law theory concerns itself with the justification of punishment. Conflicting moral theories of punishment will be held in liberal democracies. The positive law therefore neither will nor should reflect exclusively a single moral theory of punishment. Like the institutions for making law, the institutions for enforcing it will cause punishments imposed to deviate from what pure moral theory might prescribe. These claims are illustrated by the debate over blackmail prohibition. The best rationale for prohibition is not the moral argument that blackmailers culpably cause harm, but the political argument that blackmailers threaten the state’s claimed monopoly on punishing crime.