Andrew B Coan

Interests

Teaching

Constitutional LawCivil ProcedureFederal Courts

Research

Constitutional LawConstitutional TheoryFederal Courts

Courses

Scholarly Contributions

Books

• Coan, A. B. (2019). Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of law. Oxford University Press.
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  The first special prosecutor was appointed by President Ulysses S. Grant in 1875. Ever since, presidents of both parties have appointed special prosecutors and empowered them to operate with unusual independence. In short order, such appointments became a standard method for neutralizing political scandals and demonstrating the President’s commitment to the rule of law. This long, mostly forgotten history shows that special prosecutors can do much to protect the rule of law under the right circumstances. It also shows that they are fallible. Many have been thwarted by the formidable challenges of investigating a sitting President and his close associates. Some have abused the powers entrusted to them. Yet such cases are rare. At their best, special prosecutors function as avatars of the people channeling an unfocused popular will to safeguard the rule of law. But special prosecutors can function effectively only if the people care about holding the President accountable. If a President thinks he can fire a special prosecutor without incurring serious political damage, he has the power to do so. Ultimately, only the American people can decide whether the President is above the law. At any given moment, this question can seem like a purely partisan one. All Americans, however, have a profound stake in preserving the “government of laws and not of men” passed down to us by previous generations. Prosecuting the President provides the information every American needs to perform this civic duty intelligently and responsibly.
• Coan, A. B. (2019). Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making.
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  Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making, Harvard University Press (forthcoming 2018). [Summer Research Award 2015, Research Leave, Fall 2015]

Journals/Publications

• Coan, A. B. (2020). Eight Futures of the Nondelegation Doctrine. Wisconsin Law Review, 2020, 141.
• Coan, A. B. (2020). The Dead Hand Problem Revisited. Emory Law Journal Online.
• Coan, A. B. (2018). Amending the Law of Constitutional Interpretation. Duke Journal of Constitutional Law and Public Policy.
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  In recent years, the law of interpretation has received a welcome flurry of attention. Much of this attention has focused on the law of U.S. constitutional interpretation circa 2018 and whether that law should be understood as embracing originalism—or any other specific approach—or whether it is better understood as broadly open-textured or otherwise pluralist. This symposium essay takes a different tack. As a thought experiment, it proposes a constitutional amendment explicitly mandating a nonoriginalist approach to constitutional interpretation. This thought experiment has a number of interesting implications for both originalism and nonoriginalism and for the law of interpretation more generally. Most fundamentally, it suggests that constitutional theorists should think more deeply about the nature and grounds of constitutional decision-makers’ presumptive obligation to follow the law.
• Coan, A. B. (2018). Article III, Representation, and Remedies. ConLawNOW.
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  As articulated by the United States Supreme Court, the principal purpose of Article III standing is to force decisions affecting large numbers of people into the democratic process where all affected parties are represented. The logical implication of this “representation-centered theory” for the proper scope of injunctive relief is straightforward. That relief must not exceed what is reasonably necessary to remedy the particularized injury that sets the plaintiff or plaintiffs apart from the general population. The Supreme Court has repeatedly reaffirmed this logic. Yet courts and commentators, including the Court itself, routinely ignore it. The most prominent recent examples are the universal injunctions issued by federal district courts against the Obama administration’s DAPA policy and President Trump’s travel ban. If the representation-centered theory of Article III is correct, this disregard for its implications at the remedial stage is alarming and corrosive of democratic self-government. But there is another possibility. Disregard for the representation-centered theory at the remedial stage might reflect well-justified misgivings, ambivalence, or uneasiness about the representation-centered theory, even by the Court itself. In this brief symposium essay, we raise and offer some preliminary reflections on this possibility, with an eye to exploring it more fully in future work.
• Coan, A. B. (2014). Judicial Capacity and Executive Power. n/a, 69.
• Coan, A. B. (2016). Implementing Enumeration. William & Mary Law Review, 57(6).
• Coan, A. B. (2017). Living Constitutional Theory. DLJ Online, 66, 30.
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  Living Constitutional Theory (30 pages, ready for Summer 2016 submission)•Living Constitutional Theory, Duke LJ Online (forthcoming 2017)
• Coan, A. B. (2017). The Foundations of Constitutional Theory. Wisconsin Law Review (forthcoming).
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  The Foundations of Constitutional Theory (70 pages, ready for Summer 2016 submission) [Summer Research Award 2016]
• Coan, A. B. (2016). Implementing Enumeration. William & Mary Law Review.
• Coan, A. B. (2016). Judicial Capacity and Executive Power. Virginia Law Review, 102(765).
• Coan, A. B. (2015). Difficulty of Amendment and Interpretive Choice. Journal of Institutional Studies, 1(6).
• Coan, A. B., & Desai, A. C. (2015). Difficulty of Amendment and Interpretive Choice. 1 Journal of Institutional Studies 6, 1(6), 68.
• Coan, A. B. (2015). Commandeering, Coercion, and the Deep Structure of Federalism. Boston University Law Review, 95(1), 1-34.
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  The anti-commandeering and anti-coercion principles announced in New York v. United States and NFIB v. Sebelius have great potential importance, but the most prominent justification for them is seriously flawed. This Article elaborates a more persuasive and largely neglected alternative, grounded in the deep structure of American federalism. Simply put, both commandeering and coercive conditional spending transfer control of state governments from their constitutionally designated electoral constituencies to Congress. This threat is probably insufficient to justify the anti-commandeering and anti- coercion principles—it is only one element of a more complex federalism calculus—but any persuasive critique or defense of these doctrines must take account of it.

Proceedings Publications

• Coan, A. B. (2019, Fall). Symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019). In Online Symposium at Balkinization.
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  Online symposium on my book Rationing the Constitution, including eight participants:1 .David Marcus, UCLA Law School.2. Aaron-Andrew P. Bruhl, William & Mary Law School3. Maggie Blackhawk, University of Pennsylvania Law School4. Aziz Huq, University of Chicago Law School5. Frederick Schauer, University of Virgnia Law School 6. Adrian Vermeule, Harvard Law School7. Victoria Nourse, Georgetown University Law Center.8. Mariah Zeisberg, University of Michigan, Department of Political Science
• Coan, A. B. (2019, Fall). Wisconsin Law Review Symposium on Rationing the Constitution. In Wisconsin Law Review Symposium, 2020.
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  Two-day symposium on my book Rationing the Constitution, featuring the following participants:• Moderator: Anuj Desai, Voss Bascom Professor of Law, University of Wisconsin Law School• Neil Komesar, Miller Professor of Law Emeritus, University of Wisconsin Law School• Bertrall Ross, Chancellor's Professor of Law, Berkeley Law• Carol M. Rose, Gordo• Moderator: Asifa Quraishi-Landes, Professor of Law, University of Wisconsin Law School• David S. Schwartz, Foley & Lardner Bascom Professor of Law, University of Wisconsin Law School• Neil S. Siegel, David W. Ichel Professor of Law and Professor of Politics; Director of the DC Summer Institute on Law and Policy, Duke Law School• Gil Seinfeld, Professor of Law and Associate Dean for Academic Programming, University of Michigan Law School• Erin Ryan, Elizabeth C. & Clyde W. Atkinson Professor, Florida State University College of Law• Moderator: John Ohnesorge, George Young Bascom Professor of Law, Director for East Asian Legal Studies, University of Wisconsin Law School• Jon D. Michaels, Professor of Law, UCLA Law• Miriam Seifter, Associate Professor of Law and Rowe Faculty Fellow in Regulatory Law, University of Wisconsin Law School• Laurence Claus, Professor of Law, University of San Diego• Julian Davis Mortenson, Professor of Law, University of Michigan Law School• Moderator: Rob Yablon, Assistant Professor of Law, University of Wisconsin Law School• Jane S. Schacter, Professor of Law, Stanford Law School• Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, Chicago-Kent College of Law• David Fontana, Samuel Tyler Research Professor, George Washington University Law School• Moderator: Howie Erlanger, Voss-Bascom Professor of Law Emeritus, University of Wisconsin Law School• Eric Berger, Associate Dean for Faculty and Professor of Law, Nebraska College of Law• Stuart Chinn, Associate Dean for Programs and Research; James O. and Alfred T. Goodwin Senior Fellow; Associate Professor, University of Oregon School of Law• Edward L. Rubin, Professor of Law and Political Science, Vanderbilt Law School

Presentations

• Coan, A. B. (2019, October). Eight Futures of the Nondelegation Doctrine. Wisconsin Law Review Symposium on Andrew Coan, Rationing the Constitution. Madison, Wisconsin.
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  Keynote address for symposium on my book Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (2019)

Creative Productions

• Coan, A. B. (2019. Interview with former White House Counsel Kathryn Ruemmler. Tucson, Arizona.
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  Constitution Day interview with former White House Counsel Kathryn Ruemmler on Executive Power and the Rule of Law
• Coan, A. B., & Massaro, T. M. (2018. "Mathew Whitaker's Supreme Court Opinions are Incoherent, May Cause Constitutional Crisis". USA Today. https://www.usatoday.com/story/opinion/2018/11/14/matthew-whitaker-acting-attorney-general-supreme-court-constitutional-crisis-column/1977742002/
• Coan, A. B. (2017. Interview about Executive Power. Arizona Week. Tucson, AZ: Arizona Public Media.
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  "...we learn more on how presidential authority works from Andrew Coan, James E. Rogers College of Law," Arizona Week, AZPM
• Coan, A. B. (2016. Interview about Executive Power. Arizona Week. Tucson, AZ: Arizona Public Media.
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  "Andrew Coan, UA James E. Rodgers College of Law, explains how much power a president really has," Arizona Week, AZPM.
• Coan, A. B. (2015. Interview with Erwin Chemerinsky. CSPAN, Tucson Festival of Books.
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  One-hour interview with Erwin Chemerinsky

Others

• Coan, A. B. (2020, June). Generous — and inclusive — sick leave is a must for any business that wants to reopen safely. Business Insider. https://www.businessinsider.com/to-reopen-safely-employers-need-effective-and-generous-sick-leave-2020-6
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  Co-authored op-ed on role of sick leave in employer reopening plans
• Coan, A. B. (2020, October). Response to Comments on Rationing the Constitution. Balkinization. https://balkin.blogspot.com/2019/10/response-to-comments-on-rationing.html
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  7000-word response to commenters for online symposium on Andrew Coan, Rationing the Constitution (Harvard University Press 2019)