Thomas A. Smith (University of San Diego School of Law) has posted The Offices We Hold: The Public Office as Corporation Sole on SSRN. Here is the abstract:
American constitutional law is built upon offices and yet cannot say what an office is, and the tests by which the Supreme Court identifies officers are incoherent because each of them examines the officeholder and never the office. This Article recovers the office as an artificial person distinct from its holder, a continuous and impersonal trust of public powers structured in the manner of the corporation sole, the office that is itself a person and survives every incumbent. It then shows that the recurring puzzles of the doctrine, from who counts as an officer to the reach of removal and the bounds of official immunity, dissolve once the office is restored as the unit of analysis. The confusion of office with officeholder is not a technical lapse. It is one of the ways a modern state passes off personal power as public authority, and to recover the office is to recover a primary instrument by which a republic holds power impersonally and answerably.
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