Patrick Roath has published this note, germane to the recurrent topic of criminalizing politics raised most recently by the Perry indictment. Here’s the abstract of the note, which appears in the Columbia Journal of Law & Social Problems:
In politics, incumbency comes with significant advantages. Government officials running for reelection can use the benefits of their incumbent position to speak with their constituents and, at least incidentally, support their reelection. At some point, an incumbent candidate’s use of those privileges becomes abuse – and possibly a criminal act. Using a case study, this Note explores the fine line between the legitimate use and illegitimate abuse of official incumbency to advance political goals, arguing that courts should consider the justiciability of abuse of incumbency claims in light of the unique separation of powers concerns such cases often raise. The claim is ultimately a modest one: this is an area of the law with particularly difficult line-drawing questions and few clear doctrinal solutions.