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The Independent State Legislature in Republican Theory
Get PDFThe 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 Article 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, “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: Who is the “state” on behalf of which the legislature deploys power?
Using this language as its jumping off point, this Article 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 Article 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
Walk Like the Bird Flies
No full textThese poems transport us from Texas desert landscapes to New England mountains to Adriatic tavernas, festivals, and landmarks, and at the same time they offer vivid confrontations with the elements of the natural world—mud, fire, water, forests, the wind that possibly “[carries] messages from beyond”—treating both foreign cities and nature’s manifestations as phenomena to observe and honor through the eyes of an estranged but receptive traveler. Susan Ayres fuses images from inner and outer landscapes, raising questions that can’t be answered and perspectives that can’t be contained but nevertheless offer sparks of revelation in poem after poem.https://scholarship.law.tamu.edu/poetry-month-2025-works/1002/thumbnail.jp
Response to Professor Dinner
Get PDFI want to thank the Texas A&M Law Review for including my work in this special Issue and express my appreciation to Professor Dinner for her thoughtful comments concerning the evolution of my scholarship. Professor Dinner raises the question of whether that earlier work is relevant to the Dobbs v. Jackson Women’s Health Organization opinion, specifically, and to broader issues of reproductive justice, more generally. For me, Dobbs illustrates—once again—how our American obsession with both individual rights and Supreme Court jurisprudence can distort our sense of the possibilities for achieving social (or reproductive) justice. I see my work as an attempt to argue for a different perspective, one that might have the ability to alter or redirect that obsession. I also believe that the universal vulnerability approach has the potential to expand, and perhaps even refine, debates about reproductive justice
Natural Property Rights: An Introduction
Get PDFThis Article introduces a symposium hosted by the Texas A&M University Journal of Property Law. The symposium is on a forthcoming book, and in that book the author introduces and defends a theory of property relying on labor, natural rights, and mine-run principles of natural law. Parts I and II of the Article preview the main claims of the book, summarizing part by part and chapter by chapter.
The rest of the Article illustrates how the theory introduced in the book applies to a contemporary resource dispute. The Article studies an ongoing lawsuit styled Campo v. United States, now pending in federal court. In Campo, oyster producers are suing the United States for inverse condemnation. The class plaintiffs seek $1.6 billion in just compensation for the U.S. Army Corps of Engineers having (allegedly) killed oysters they were raising when it diverted water from the Mississippi River through a spillway into the Gulf Coast.
The Campo case repays study for two reasons. Labor and natural rights are already at play in the Campo litigation. The U.S. government moved to dismiss the plaintiffs’ claims to property in oysters, and when the presiding judge denied that motion he relied in part on natural rights and the labor theory John Locke introduced in his Second Treatise of Government. Separately, the underlying dispute fairly tests any general theory of property. The dispute raises questions about: whether oysters should be private property; whether people should be allowed to claim private property in coastal water bottoms; how property in oysters and water bottoms should be reconciled with public interests in shoreline protection; why have an institution like eminent domain; and how nuisance law should apply to a government-sponsored water diversion into coastal areas. If a theory of property can shed helpful light on all of those issues, it applies broadly enough to constitute a general theory of property, and the theory introduced in this Article satisfies that standard. Along the way, this Article also shows how a labor- and rights-based property theory differs from justifications for property and regulation influential in contemporary law, policy, and scholarship
Opus as the Core of Property
Get PDFNo account of property law can achieve a comprehensive understanding without factoring in natural rights. Professor Eric Claeys’s new book offers a significant contribution to contemporary property theory by setting out the most comprehensive and defensible theory of natural property rights to appear in a long time. Claeys describes the function of property as productive work. Intentional planning, purposeful effort, and creative ordering enable people to achieve lives of flourishing. And, as Claeys demonstrates in careful detail, the various norms and institutions of property law make possible those exercises of practical reason and the flourishing that results from them. Natural property rights turn out to have both pragmatic utility and ethical value. They enable human beings to flourish both materially and as reasoning, choosing, moral agents
The evolution of international law
No full textStates have made and implemented international law as a foundation for world order since 1648 based on a multiplicity of sovereign states with responsibilities to each other and, eventually to the people and resources they governed. With the increase in cross-border interactions and interests, states used international law to create international organizations (IOs). They added to international law’s capacity, which has created controversy when IOs act independently of their member states, and when norm development and implementation interact with domestic public and private discourse and decision-making. International law struggles in a global political environment in which its impact on international behavior and its coherence and authority as a legal system are challenged. It has also not yet responded to the global reality of multilevel, multisector stakeholders, sources of authority, and capacity; it has therefore under-utilized those elements in the making and implementation of international obligations
Property, Psyche, and the Theory of Tenancy: Independent and Interdependent Lease Law Covenants Through the Lens of Cultural Psychology
Get PDFIs it property or contract? This question has perplexed scholars studying the residential lease for most of the last century. The present contribution combines the complementary perspectives of legal history and cultural psychology to clarify our theory of tenancy. From a historical perspective, I find that the oscillation of tenancy between competing doctrinal paradigms has resulted in a compromise solution rather than a coherent theory. While piecemeal reforms in the 1970s revised the doctrine of independent covenants, they did not provide a theoretical justification for increasing interdependence. From a psychological perspective, I suggest that such a theoretical justification may come from cultural psychology as the discipline that studies the behavioral effects of independent and interdependent self-construals. I provide the first comprehensive review of how this strand of psychology has informed legal issues in the last twenty years, and I extend this line of inquiry to include tenancy. I conclude that whether we regard tenancy as property or contract (i.e., as based on independent or interdependent covenants) will affect the amount of cooperation that we should expect from landlords and tenants. A theory of tenancy based on this insight would open up avenues for further research in law and society, comparative law, and contract theory
Grid Governance in the Energy-Trilemma Era: Remedying the Democracy Deficit
Get PDFTransforming the electric power grid is central to any viable scenario for addressing global climate change, but the process and politics of this transformation are complex. The desire to transform the grid creates an “energy trilemma” involving often conflicting desires for reliability, cost, and decarbonization; and, at least in the short run, it is difficult to avoid making tradeoffs between these different goals. It is somewhat shocking, then, that many crucial decisions about electric power service in the United States are made not by consumers or their utilities, nor by state public utilities commissions or federal regulators. Instead, for much of the country, those decisions are made by entities known as regional transmission organizations (RTOs). These RTOs, which straddle and blur the boundary between private and public methods of social ordering, establish and run wholesale electricity markets, coordinate dispatch, keep the grid in balance, and plan infrastructure for the grid of the future. These responsibilities put RTOs at the center of the energy trilemma—a position that sits in significant tension with their ambiguous status, incentives, and accountability.To fully understand how RTOs work and the role they are playing in the energy transition, it is necessary to examine where they came from, what assumptions animated their creation, and, finally, how those assumptions have been undermined by the changing landscape of the energy sector. This article aims to both explain what RTOS have become and highlight what might need to change to make them effective arbiters of the tensions at the heart of the energy trilemma. Our central argument is that RTOs emerged as institutions wedded to a peculiar model of democratic governance—corporatism—that no longer fits in the trilemma era. Corporatist governance lodges responsibility for negotiating public policy in an exclusive committee of representative stakeholders from the private sphere, and this neatly encapsulates the historical roots and contemporary practice of RTOs. However, we argue that the challenges facing the corporatist model of grid governance have become intractable, as the energy trilemma has not only raised the stakes of the tradeoffs involved but has also introduced new tradeoffs and new stakeholders who have no seat at the corporatist table. As a result, a democratic deficit threatens to impede efforts to navigate the energy trilemma unless reforms are implemented—specifically, reforms to make RTOs more open and responsive to the full range of stakeholders in the energy trilemma era