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49 Colum. J.L. & Soc. Probs. [i] (2015-2016)

handle is hein.journals/collsp49 and id is 1 raw text is: 






     COLUMBIA JOURNAL OF LAW
                                AND

               SOCIAL PROBLEMS
Volume   49                   Number   1                    Fall 2015
      Copyright C 2015 by the Columbia Journal of Law and Social Problems, Inc.

THE   CONSTITUTIONALITY OF THE SEC PAY TO PLAY RULE:
WHY 206(4)-5 SURVIVES THE DEREGULATORY TREND IN
  CAM  PAIGN   FINANCE......................................................................... 1
  Campaign finance law seeks a balance between two frequently competing
  interests - protection of the individual's First Amendment right to political
  expression and prevention of the corrupting effects of money in politics.
  Recent campaign finance decisions from the Roberts Court have exhibited a
  markedly deregulatory approach, striking down a number  of campaign
  contribution limits. In light of this, an SEC rule which limits the campaign
  contributions of investment advisers and  their employees  has been
  challenged. Rule 206(4)-5 is a prophylactic measure that seeks to prevent pay
  to play arrangements, in  which investment  advisers make  campaign
  contributions to public officials in return for being selected for lucrative
  government contracts for the management of public funds. This Note argues
  that Rule 206(4)-5 should survive constitutional challenge, even under the
  most unfavorable existing Supreme Court decisions, because it counters direct
  quid pro quo corruption. Further, this Note contends that courts should look
  beyond traditional campaign finance analysis to recognize the SEC's
  compelling interest in preserving the integrity of the markets and protecting
  the investments of public fund beneficiaries. The SEC's special anti-fraud
  interest and status as an independent agency call for deference to its choice of
  regulatory design in adopting Rule 206(4)-5.

COULDA, WOULDA, SHOULDA: THE RELATIONSHIP
  BETWEEN INEFFECTIVE ASSISTANCE OF COUNSEL,
  DUE  DILIGENCE, AND THE COULD HAVE BEEN RAISED
  EARLIER   BAR   IN POSTCONVICTION LITIGATION.............. 45
  Prisoners sometimes  discover something seriously wrong  with  their
  conviction, such as new evidence or constitutional error, after their trials and
  direct appeals have ended. But to obtain a new trial after the conclusion of
  direct review, a prisoner faces the daunting obstacle of the shoulda, coulda
  rule, which requires that any claim that could be discovered with due
  diligence either be raised in direct review proceedings, or lost forever. To
  avoid this restriction, habeas petitioners may add to their newly discovered
  claims an additional claim of ineffective assistance of counsel, based on the
  failure of trial and/or appellate counsel to find the newly discovered claim
  earlier. This ineffectiveness claim is generally not subject to the shoulda,
  coulda rule. In response, state courts sometimes deny both the direct claim
  as procedurally barred by the shoulda, coulda rule, and the ineffective
  assistance of counsel claim as without merit.
  These resolutions are difficult to reconcile. The application of the procedural
  bar implies a finding that the newly discovered claim could have been raised
  earlier through due diligence, which generally means that a reasonably
  competent attorney would have discovered the claim earlier. Yet that level of
  reasonableness is the standard required for effective attorney performance,
  and therefore the finding of lack of due diligence would seem to imply that
  counsel's performance was deficient. This Note explores whether there is
  middle ground between deficient performance of counsel and diligence and
  concludes that, on the facts of individual cases, a middle ground is difficult to
  justify.

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