Two central debates in contemporary legal theory involve the choice between pluralist and republican conceptions of democracy and the choice between rules and standards. How to design a legal regime for dealing with conflicts of interest lies at the intersection of these two debates. Conflicts of interest arise from a divergence between the considerations that influence a public official's decisions and those that should have such influence. Pluralist and republican theories of democracy give different answers to that latter, normative question because they espouse very different visions of the proper relationship between a public official and the individuals he or she represents. At the same time, one might conceive of conflicts of interest as occurring when officials flout specific, mechanically applied objective rules or one might adopt a conception that takes a less mechanical, more holistic approach. Finally, once a jurisdiction has adopted a definition of what constitutes a conflict, it must decide whether to regulate such conflicts through rules that draw a bright line between permissible and impermissible activity, standards that elaborate a more nuanced kind of guidance, or some combination of the two.

In this chapter, we provide a brief overview of the pluralist/republican and rules/standards debates, describe the intersection as it relates to regulating conflicts of interest, and consider how these debates have played out in California's distinctive regulatory system. We show how California's initial adoption of a standard for conflicts of interest has evolved into a more rules-oriented approach.