Tolson on the Independent State Legislature Theory and Republicanism

Franita Tolson (USC Gould School of Law) has posted The "Independent" State Legislature in Republican Theory on SSRN.  Here is the abstract:

The independent state legislature theory provides that state legislatures are not constrained by their respective state constitutions in exercising the authority that the U.S. Constitution delegates to states over federal elections. In its most extreme form, the doctrine permits state legislatures, in overseeing the mechanics of federal elections, to disregard state court interpretations of state constitutions. Scholars have offered a number of criticisms of this doctrine, noting that it runs counter to the founding generation’s concerns about the lawlessness of state legislatures; is contrary to historical practice at the founding; and undermines the constitutional structure in which the more democratically accountable Congress, rather than the states, is vested with final say over federal elections.

This Essay, forthcoming in a special Texas A&M Law Review symposium issue celebrating Professor Richard Epstein, contributes to this growing literature by pointing to the constraints, centered in the constitutional text and history, that limit the ability of legislatures to disregard their state constitutions. Specifically, the Electors Clause of Article II, Section 1 provides that, “Each state shall appoint, in such manner as the legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress…” This text explicitly raises the question of who is the “state” on behalf of which the legislature deploys power?

Using this language as its jumping off point, this Essay argues that the “state” referenced in Article II, Section 1 refers to its citizens, whose preferences are conveyed to the state legislature through the state’s electorate and in the state constitution. Within a decade of the founding, the selection of officials by the state’s electorate became central to the theory of republicanism underlying the Guarantee Clause of Article IV, which predicated the legitimacy of government on majority support. By the adoption of the Twelfth Amendment, which changed the structure of presidential elections, political elites viewed republican government as requiring that state legislatures and, to a lesser extent, federal officials, be accountable to the people who elected them, accountability that prevented state legislatures from exercising their authority over federal elections in blatant disregard of the people’s wishes.

The Essay concludes that the independent state legislature theory, particularly in its strongest iteration, runs counter to the democratizing effect that the Twelfth Amendment was intended to have on presidential elections. The theory allows the state legislature to disregard the preferences of the people at a juncture in which they are exercising the oversight and accountability at the core of our system of republicanism: during the election of federal officials. Any version of the doctrine, if adopted, has to respect majoritarian preferences.

Highly recommended.  Download it while it's hot!

Speta on Common Carrier Principles & Internet Platforms

James B. Speta (Northwestern University - Pritzker School of Law) has posted Can Common Carrier Principles Control Internet Platform Dominance? on SSRN.  Here is the abstract:

In this lecture, the 2022 Robert F. Boden lecture at Marquette University Law School, I address both the dominance of internet platforms—Google, Facebook, Twitter, Amazon, Apple, and others—and the calls to regulate them as common carriers. The main concern is that these platforms are biased, that they discriminate, that they foreclose speech. That is why, today, platform critics—including governments—are reaching for the traditional law of railroads and of telephone companies: the law of common carriage. That once-dominant law forbade discrimination. This topic is made even more timely by the Fifth Circuit’s recent NetChoice decision, upholding a Texas state law imposing such regulation, and explicitly disagreeing with an Eleventh Circuit decision finding a similar Florida law unconstitutional. One Supreme Court Justice has also written in favor of platform-focused common carrier regulation, as have numerous federal and state lawmakers, some academics, and many commentators.

I think the proposals for regulating platforms are wrong to target common carrier solutions at the platforms’ core operations themselves—to change the ways in which users are permitted access, content is moderated, and search results are provided. Such platform regulation does not fit the common carrier model. Platforms are not merely conduits of user behavior, although they are partly that. Platforms also seek to create a particular kind of content experience—a speech experience—that holds the attention of their users. Common carrier rules have never applied to the content curators: newspapers, broadcasters, and bookstores. Even more concerning, laws directly controlling platforms simply give the government unprecedented power over the content experiences these private companies seek to create.

Instead, we can and should at least try to address concerns about the currently dominant platforms by using law to make it easier to have more platforms. Common carrier solutions should be targeted at the infrastructure that enables platforms to be built and to reach consumers—the devices, ISPs, hosts, cyberdefense, and other support services. In the past, these providers have denied services to some new platforms that sought to establish alternative services. Applying a lighter-touch (and differently placed) version of common carrier regulation to the internet’s support providers can increase the possibility of alternative platforms. This is our best hope to enrich our speech choices and ecosystem without government censorship.

Hodge et al on Reversals of Non-Textual Constitutional Rights

James G. Hodge (Arizona State University (ASU) - Sandra Day O'Connor College of Law), Jennifer L. Piatt (Arizona State University (ASU) - Sandra Day O'Connor College of Law), Erica N. White (Arizona State University (ASU), Sandra Day O'Connor College of Law; Center for Public Health Law and Policy), Madisyn Puchebner (Arizona State University (ASU), Sandra Day O'Connor College of Law), & Summer Ghaith (Arizona State University (ASU), Sandra Day O'Connor College of Law) have posted Curbing Reversals of Non-Textual Constitutional Rights (Maryland Law Journal of Race, Religion, Gender & Class. 2022; 22(2): __- __ (forthcoming)) on SSRN.  Here is the abstract:

With the June 2022 issuance of Dobbs v. Jackson Women’s Health Organization, one of the most impactful cases in U.S. history, the Supreme Court renounced nearly a half-century of constitutional guarantees to abortion access. The Court’s stunning “rights reversal,” justified by the majority’s originalist assessment that prior jurisprudence was imprudently decided, places at immediate risk multiple other non-textual rights (e.g., to contraceptives, sexual intimacy, marriage equality). These privacy interests are already under political and legal attacks in several jurisdictions. As illustrated in response to Dobbs, neither the President, Congress, nor progressive states are willing, well-positioned, or poised to ameliorate existing or future judicial reversals of rights. Who can allay the threat of diminishing privacy interests or other non-textual rights? Why, the Supreme Court itself. Under principles of “constitutional cohesion,” which recognize the close interplay of rights and structural components (e.g., separation of powers, federalism, and preemption) within the U.S. Constitution, the Dobbs Court’s “rights-centric” approach to withdrawing non-textual rights faces significant challenges. Ultimately, structural challenges set definitive limits on additional judicial interpretations of non-textual rights and present opportunities for their partial reinstatement through the very Court that seeks to strip them away from Americans.

Silver on Thompson v. Trump

Jay Sterling Silver (St. Thomas University - School of Law) has posted Thompson V. Trump: Lost in the Funhouse of Brandenburg (107 Iowa Law Review Online 151 (2022)) on SSRN.  Here is the abstract:

D.C. Circuit Court Judge Amit Mehta’s ruling in Thompson v. Trump denying immunity to ex-President Donald Trump in actions brought against him by a variety of plaintiffs for inciting the January 6th insurrection offered a moment of relief to the left side of the Great Partisan Divide in these dark times. Mr. Trump could finally be held responsible for a bit of the havoc he wreaked.

The author advises not to celebrate too quickly. The Supreme Court—in the great likelihood that the case ends up there—may not see eye to eye with Judge Mehta. Two issues will be central to the High Court’s analysis and to this Essay. The first is whether the ex-President’s remarks fell outside of the Court’s “capacious” view of the “outer perimeter” of presidential functions. The second issue as to whether his speech that day falls under the long-standing Brandenburg exception to free speech presents a minefield of perplexing, previously unidentified issues that threaten consistency in the decisions it produces. The author brings each of these issues to light, positing their implications for Mr. Trump’s immunity with respect to the civil suits arising out of the January 6th attack on Congress and ultimately providing an inventory of questions that the Court must weigh in on to produce a workable standard for assessing when speech is deemed to incite imminent lawless action.

Eldar on Enterprise Foundations

Ofer Eldar (Duke University School of Law; Duke University - Fuqua School of Business; Duke Innovation & Entrepreneurship Initiative) has posted Are Enterprise Foundations Possible in the United States? (Forthcoming in Anne Sanders & Steen Thomsen (eds.), European Enterprise Foundations (Intersentia Cambridge, 2023)) on SSRN.  Here is the abstract:

This book chapter discusses the ability of entrepreneurs to form enterprise foundations in the US and the hurdles for forming them. The US regime for tax-exempt private foundations is very restrictive and does not practically allow them to have substantial ownership of for-profit firms. As a result, there is a perception that enterprise foundations are not feasible in the US. However, enterprise foundations, broadly defined as industrial firms controlled by any nonprofit firm, need not involve ownership by a private foundation (as it is defined in the US Tax Code) and could also be owned by other types of nonprofits. Such enterprise foundations are unlikely to benefit from key tax exemptions (such as tax-deductible donations or income tax exemptions), which probably explains their unpopularity. The chapter evaluates recent developments to liberalize the law of enterprise foundations, including (1) the "Newman's Own" exception that permits private foundations to own business firms under certain restrictive conditions, and (2) the perpetual purpose trust, which was recently utilized to transfer the ownership of Patagonia to trust and a non-exempt nonprofit.

Bamberger & Mayse on Cover on a Jurisprudence of Obligations

Kenneth A. Bamberger (University of California, Berkeley - School of Law) & Ariel Evan Mayse (Stanford University - School of Humanities & Sciences) have posted Revisiting a Jurisprudence of Obligation (Touro Law Review, Vol. 37, No. 4, 2022) on SSRN.  Here is the abstract:

Through his landmark exploration of obligation as the conceptual touchstone of what he describes as the “Jewish jurisprudence of the social order,” Robert Cover offered an alternate language for legal regimes grounded in a rhetoric of individual rights.

The present essay revisits Cover’s account of the socially embedded nature of law and juridical process, taking seriously both its claims, as well as the cautions of its critics. The essay thus neither abandons the concept of rights as key to jurisprudence nor seeks to present a naïve or romantic characterization of Jewish legal thought, and proceeds wary of the pitfalls inherent in such comparative efforts.

At the same time, it argues that Cover’s primary insight regarding the notion of a socially imbricated obligation as a core feature of Jewish jurisprudence and provides an important contribution. This theory is especially valuable in contexts in which contemporary policymakers and advocates have lacked success in locating a language or strategy sufficient to appreciate and address overwhelming modern problems at the juncture of individual and community.

More specifically, drawing on our previous work exploring Jewish law lessons for information privacy and environmental ethics, this essay argues that a nuanced adaptation of Cover’s theory of “incumbent obligation” as the organizing feature of Jewish law, can provide contemporary policymakers with a set of conceptual tools to help develop alternative approaches to metastatic surveillance and environmental collapse.

The notion of obligation as the heart of an ethical and jurisprudential system provides a powerful corrective to the post-Enlightenment West’s centering of the “individual moral adventure” and the privileging of individual rights that has gone hand-in-hand with this ethos. The pre-modern roots of halakhah (Jewish law) permit a powerful challenge to this paradigmatic hegemony, as the Jewish legal tradition precedes liberalism and thus predates conceptions of the individual that undergird much of modern thinking, even as Jewish jurisprudence embodies a deep commitment to protecting individuals.

Engagement with this tradition need not supplant liberalism. Rather, it presents a complementary ethical framework that can work within and enrich post-Enlightenment Western discourse. Reflecting this opportunity, revisiting Cover’s work provides a conceptual frame that is sufficiently flexible and capacious to provide an additional legal vocabulary and set of jurisprudential values that can help confront the greatest challenges of our age.

Gilden on Revenge Porn Laws & Queer People

Andrew Gilden (Willamette University - College of Law) has posted The Queer Limits of Revenge Porn (Boston College Law Review, Forthcoming) on SSRN.  Here is the abstract:

The highly successful movement to combat the nonconsensual distribution of sexual imagery—a.k.a. “revenge porn”—has sent a powerful message that sexual expression through digital technology is an illegitimate basis for stigma, abuse, or the loss of employment. Although spearheaded by feminist advocates to counter the overwhelmingly gendered dynamics of revenge porn, these laws send a powerful message around sexual norms and sexual privacy more broadly that would appear to benefit queer communities especially. Nonetheless, revenge porn laws as enacted by state legislatures and interpreted by state courts are significantly limited in ways that undermine their practical and symbolic benefits for queer people and other sexual minorities. In virtually all of the 48 US states that have criminalized revenge porn, the enacted statutes draw a line between “private” or “intimate” images, which are protected against unauthorized distribution, and “public” or “commercial” images, which are expressly or impliedly excluded. And in some states, a person’s reasonable expectation of privacy only extends to images initially shared in the context of a “relationship.” These limits effectively carve out from protection wide swaths of sexual expression that are incredibly common—and often highly celebrated—within queer communities. Under these laws, sexual images that are taken in public contexts, such as a nightclub or a sexually-themed street fair, or shared in a commercial context, such as Grindr or Onlyfans, can be freely distributed with employers, families, and friends notwithstanding the distributor’s intent to stigmatize, punish, and harass the subject of the image. This paper closely examines the limits of revenge porn laws for queer people and suggests ways of reframing these laws to better acknowledge and respond to queer forms of sexual privacy.

Render on a Feminist Blake v. Stradford

Meredith Render (University of Alabama - School of Law) has posted Blake v. Stradford, 725 N.Y.S.2d 189 (Dist. Ct. 2001) (in FEMINIST JUDGMENTS: REWRITTEN PROPERTY OPINIONS (Cambridge University Press, Eloisa Rodriguez-Dod and Elena Maria Marty-Nelson ed., 2021)) on SSRN.  Here is the abstract:

This piece engages in a reimagining of the classic property case of Blake v. Stradford through a feminist lens, as part of Cambridge University Press’s series, FEMINIST JUDGMENTS. In the original case, an unmarried male and female romantic couple resided together for several years (along with their children) in a house owned by the male partner. After several years of cohabitation, the couple’s romantic relationship came to an end, and the male partner moved to summarily evict the female partner as well as their two children. The Blake Court thus faced the question of whether a woman who resides in the family home with her male domestic partner and their children, is a licensee of her domestic partner (who legally owns the property). If she is a licensee, then she resides in the home at the invitation and permission of her partner, which can be revoked at any time. Had the Blake plaintiff been legally married to her partner, then there was no question that she would have a property interest in remaining in the home that exceeds the meager rights of a licensee. The Blake Court observed that under New York law of the time, “The occupation of a marital home by a wife is not possession existing by virtue of the permission of her husband. Her possession of the premises exists because of special rights incidental to the marriage contract and relationship.” However, the court concluded, because the parties here were never married, no such right of possession extended to the Blake plaintiff.

This piece rewrites that decision through the lens of feminist analysis. The reimagined decision questions the legitimacy of privileging marriage as a status, given the institution’s historical role as a mechanism for the commodification and exploitation of women’s reproductive capacity and labor. The reimagined decision declines to endorse the proposition that a married woman who resides in a family home with her children and their father lives there by an implicit right incident to marriage, while an unmarried woman who lives in a family home with her children and their father lives there by revocable permission. Implicit in such a distinction is the notion that a married woman, having secured that status of “wife” and thereby the imprimatur of patriarchal convention, will be rewarded by a special equitable consideration that is denied to a woman who has chosen to build her family outside the institution of marriage.

Bernatt on the Rule of Law & EU Competition Law

Maciej Bernatt (University of Warsaw, Faculty of Management) has posted The Double Helix of Rule of Law And EU Competition Law: An Appraisal (European Law Journal 2022, 1-19) on SSRN.  Here is the abstract:

By discussing the experiences of two EU Member States: Hungary and Poland, the article aims to demonstrate that there are three layers of rule of law which are relevant for EU competition law. The first one is external: it relates to the legal system of EU Member States which competition law is part of. In national legal systems, rule of law safeguards need to be put in place in order to provide an adequate legal environment for the competition law system to perform its role. The second one is internal: it concerns rule of law safeguards in relation to the Member States’ competition authorities, in particular their independence. The third one is consequential: the weakening of the rule law within the external and internal layers affects the proper functioning of the competition law system. The effective functioning of a decentralised system of EU competition law enforcement is also becoming an issue. As a result, the effectiveness of Articles 101-102 TFEU is endangered and a vicious circle of mutually reinforcing competition law and rule of law crises unfolds. The article speaks to the recent developments in the EU case-law, i.e. the General Court’s judgment of 9 February 2022 in Sped-Pro case (T 791/19) and creeping mutual distrust within the European Union.

Plamondon on Abundance and Inequality

Stephanie Plamondon (Brigham Young University J. Reuben Clark Law School) has posted Inequality in Abundance (Frontiers in Research Metrics and Analytics 2022) on SSRN.  Here is the abstract:

With technological advance has come the possibility of a new era of abundance. Technologies like 3D printing and robotics promise to lower the costs of production and distribution of goods and services, presumably making these goods and services readily available to those across income and wealth spectrums. This undoubtedly is a good thing. But what will be the effect of these technologies on existing wealth inequalities and the psychological and societal burdens they impose? Can we expect that this newfound abundance will help remedy the current historic levels of inequality in the U.S. and other western countries? Unfortunately, the answer is likely no, for two reasons. First, history suggests that inequality often persists even under conditions of abundance due to dynamics of power and politics and ongoing impacts of structural inequalities. Having more than enough of a particular good or service to go around does not guarantee that all will have access to this good or service. Second, even if the new abundance enabled by technology extends into all levels of the socioeconomic spectrum, enabling individuals to access goods and services (and their attendant benefits) previously beyond their reach, the harms that attend unequal societies will persist. Increasing evidence suggests that these harms, including increased violence and decreased health, arise not from access (or a lack thereof) to particular goods and services, but from the adverse psychological consequences of living in an unequal society. This is a psychological burden shared not just by those at the losing end of the inequality equation, but also those who enjoy a relative advantage in society. Unequal societies are psychologically harmful to all who live in them, regardless of where these individuals fall on the socioeconomic spectrum, and largely independent of the particular goods and services they enjoy. The upshot is that society cannot rely on new abundance technologies to automatically solve problems of inequality and the social and psychological burdens that plague those who live in unequal societies. Indeed, depending on how society responds to questions of access to these technologies, their introduction might exacerbate various forms of inequality. In light of this, it is crucial to address conditions of inequality head-on, so that the new era of abundance promised by technological advance can lead to real gains in individual and societal wellbeing.

Pryor on Person-Centered Pluralist Contract Theory

C. Scott Pryor (Campbell University - Norman Adrian Wiggins School of Law) has posted Person-Centered Pluralism About Contract Theory on SSRN.  Here is the abstract:

We are in the midst of a golden age of contract theory. Not because we have figured it out but because it is plentiful, and much of it is deeply considered. Contract law, on the other hand, remains relatively static in the United States.

The stability of contract law is not matched by the discussion of contract theory. Since Ronald Coase first applied neo-classical economic analysis to contract law, contract theory tethered to welfare maximization has raced forward. Nonetheless, welfare centered theories have not ultimately prevailed. Drawing on forms of deontological ethics, theories grounded in visions of personal sovereignty are regularly advanced. And, on a smaller scale, virtue ethics has become a resource for contract theory.

Perhaps that the effort to justify contract law is a bootless errand. Why do we need a theory of contract law when the law we have works tolerably well? First, from an internal perspective, those who engage in contracting and the profession of contract law see themselves as part of something that has a foundation. Situating law in a more comprehensive project is endemic to the human condition. And second, most believe that state coercion ought to be justifiable by some expression of reason. The liberal tradition demands something more than power to justify coercive political action. Since the threat of physical deprivation of property by the state looms in the background for contracting parties, one should expect that contract theory would provide accessible reasons for public action at the behest of a private contract party.

This article will proceed in four parts. Part I begins with a selective canvass of recent developments in contract theory and will conclude with a discussion of refinements to virtue-based accounts of private law. Collectively, these developments comprise a movement toward pluralism. The inadequacy of any single approach to contract theory is widely recognized. Scholars working from within each approach now seek to refine their theories in light of others. This article ultimately provides a broader foundation for pluralism but before incorporating person-centered resources, Part II brings critics of the movement toward pluralism into the conversation. Part III draws on the sociological work on personhood of Christian Smith. Smith’s work is a resource by which the movement toward pluralism can be tethered to a fuller understanding of the human person. This part also demonstrates that the right of redress identified by Andrew Gold fits within this understanding. Finally, in Part IV there will be some examples drawing on the insights of person-centered pluralism for two contemporary issues of contract law.

Very interesting and recommended.