Copyright (c) 2009 All rights reserved. http://works.bepress.com/dan_coenen Recent documents in Dan T. Coenen en-us Sun, 31 May 2009 04:41:50 PDT 3600 http://works.bepress.com/dan_coenen/22 http://works.bepress.com/dan_coenen/22 Sat, 14 Mar 2009 09:55:26 PDT Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste transfer services from a single local private supplier. In a recent decision, United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required the purchase of these same services from a single local facility operated by the government itself. The Court thereby engrafted on the dormant Commerce Clause a new state-self-promotion exception, which receives its first extended treatment in this article. I begin by identifying the many contexts in which this exception may take hold, touching in the process on subjects as diverse as public/private joint ventures, utility regulation, the fixing of user fees, and state tax rules that are tied to government operations. I then explore the often subtle ways in which the state-self-promotion exception will interact with existing features of dormant Commerce Clause law, and I propose guiding principles for deciding difficult questions that the exception presents. Finally, I examine the spillover effects that this innovation may have on current debates over both the legitimacy and scope of the dormant Commerce Clause and the proper reach of Congress's power to regulate commercial matters. My analysis reveals that the state-self-promotion exception is not a constitutional sideshow. Rather, it is a major, new doctrinal initiative that is destined to have far-reaching - though now greatly underappreciated - effects on our law. Dan T. Coenen Constitutional Law http://works.bepress.com/dan_coenen/21 http://works.bepress.com/dan_coenen/21 Fri, 27 Feb 2009 12:40:49 PST Does it violate the dormant Commerce Clause for a state to exempt interest earned on its own bonds, but no others, from income taxation? In a recent decision, the Supreme Court answered this question in the negative. Six members of the Court found the case controlled by the state-self-promotion exception to the dormancy doctrine's antidiscrimination rule. Three of those Justices, however, went further by also invoking the longstanding market-participant exception to sustain the discriminatory state tax break. This essay challenges that alternative line of analysis. According to the author, the plurality's effort to apply the market-participant principle: (1) invites a problematic reframing of basic market-participant rhetoric; (2) threatens ill-advised changes in longstanding Commerce Clause doctrine; and (3) injects far-reaching uncertainty into an already complex field of constitutional law. For all these reasons, a majority of the Court should reject the plurality's approach, and lower courts should refuse to follow it in the meantime. Dan T. Coenen Constitutional Law State and Local Government Law Taxation-State and Local http://works.bepress.com/dan_coenen/20 http://works.bepress.com/dan_coenen/20 Fri, 05 Sep 2008 05:33:20 PDT There is no theme more familiar to constitutional law than the clash between federal power and state autonomy. The history of that struggle reveals, by and large, a long losing battle by the states. Over the years, the Supreme Court has recognized far-reaching congressional powers, rebuffed efforts to rein them in through use of the tenth amendment, and saddled the states with every significant restraint imposed by the Bill of Rights. From time to time, however, the currents of constitutional doctrine run in favor of local control. In recent years, for example, the Court has stemmed the tide toward constitutionalizing the law of criminal procedure, and cut down federal judicial authority through development of the abstention doctrine and state-favoring constructions of the eleventh amendment. This article focuses on another important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause.The core of the Court's dormant commerce clause jurisprudence is well-settled: "The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method...." Over the past two decades, however, the Court has lifted this prohibition when states act as "market participants" rather than as "market regulators." Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys printing services, sells cement, purchases goods, or hires workers.This article explores the market-participant rule. Part I traces the rule's evolution and shows how it has proven less rigid than some initially feared. Part II probes the roots of the rule by challenging justifications for it suggested by other observers. Part III offers an alternative theory of the market-participant doctrine, arguing in particular that it rests on a cluster of rationales that properly have led the Court to uphold marketplace preferences as the "general rule." Part IV builds on Part III to advance a new, four-part framework for evaluating market-participant issues. Part V then uses that framework to apply the market-participant rule to nine key categories of cases. This article rejects an all-or-nothing approach to these cases, advocating instead a sensitive application of the market-participant rule in light of its underlying justifications.Many observers have attacked the market-participant rule. this article seeks to show that these challenges are misplaced. The Court's market-participation decisions reflect a sound, if complex, accommodation of competing constitutional values. This article lays bare those values and details the course they suggest courts should follow in deciding future market-participation cases. Dan T. Coenen Commerce Clause http://works.bepress.com/dan_coenen/19 http://works.bepress.com/dan_coenen/19 Fri, 05 Sep 2008 05:33:14 PDT Moe Promisee has a right under a contract to receive monetary payments from Mae Promisor. Moe assigns his right first to Faye and then to Clay. Whom must Mae pay, Faye or Clay?For more than a century, judges have struggled with successive assignments to different persons of the same contract right. These cases which typically involve rights to monetary payments called "accounts" have generated subtleties of doctrine and disagreements among courts. Today, as a general rule, the Uniform Commercial Code controls these cases. Ambiguities, however, lurk in the code. Cryptic common-law doctrines also continue to govern many successive-assignment problems. As a result, the law of successive-assignment priorities remains fraught with complexity and confusion.Against this backdrop it is surprising that no comprehensive treatment of this subject exists in the modern legal literature. This Article intends to fill this gap in the legal literature. it explores in detail the modern law governing successive account transfers. It then considers broader jurisprudential and economic issues raised by these cases and proposes a new framework for assessing successive-assignment problems.Part II sketches the commercial realities of account transfers. Part III outlines the evolution of the legal principles that govern priorities in successively-assigned contract rights. Part IV then lays out the present-day law of successive-account assignments. In particular, Part IV seeks to impose a structure on this disjointed body of doctrine by describing it in terms of a general rule subject to exceptions. The general rule is that the first assignee to file a U.C.C. financing statement takes priority. The exceptions to this rule, as we shall see, are numerous and complex.In examining these exceptions, Part IV explores important interpretive issues under U.C.C. Section 9-104, 9-301(1)(d), 9-302(1)(e), and 9-312, as well as the proper framing of non-Code law in the many cases to which it continues to apply. Part V steps away from these discrete issues and looks at account priorities with a broader focus. It posits that a unifying theme in this field is judicial protection of the "nonprofessional" assignee at the expense of banks and other "professional" financers. Part V defends this orientation as consistent with efficiency and fairness, but also criticizes courts for often pursuing these values in the teeth of clear statutory text.Responding to difficulties highlighted in earlier sections of the Article--as well as the U.C.C. Permanent Editorial Board's recent initiation of a major reevaluation of Article Nine--Part VI offers a program for reform. That program would amend Article Nine to cover all assignments of contractual rights to any form of monetary payment. In addition, it recommends simplifying and clarifying those Code provisions that govern account assignments. Finally, the program proposed here calls for rewriting the Code's perfection and priority rules to legitimize judicial efforts to protect nonprofessional recipients of limited account assignments. Part IV suggests that adopting these reforms would produce a sound, intelligible, and genuinely uniform body of law to cover the problems created by successive assignments. Dan T. Coenen Uniform Commerical Code http://works.bepress.com/dan_coenen/18 http://works.bepress.com/dan_coenen/18 Fri, 05 Sep 2008 05:33:07 PDT James Boyd White Jurisprudence Legal Education http://works.bepress.com/dan_coenen/17 http://works.bepress.com/dan_coenen/17 Fri, 05 Sep 2008 05:33:02 PDT Professor Coenen analyzes Professor Tribe's contention that the present day Supreme Court's constitutional work is marked by an unjustified two-track approach. Professor Tribe has built this claim on an elaborate assessment of Saenz v. Roe, in which the Court -- to the surprise of many prognosticators -- invalidated a state statute that imposed temporary limitations on welfare benefits for new residents. He contends that the Court employed the open-stanced constitutional methodology of "structural inference" in deciding Saenz only because that case involved institutional arrangements. According to Professor Tribe, the modern Court has carefully (and unjustifiably) confined its use of structural inference to institutional-arrangement cases; in the field of individual liberty it has eschewed this nontextual, nontradition-based style of reasoning ever since its 1973 ruling in Roe v. Wade.Coenen begins his response to Professor Tribe's comment by noting that it provides a powerful call for the protection of individual liberties. Coenen also agrees that the structural-inference model has driven recent Supreme Court decisions that curtailed congressional authority under the banner of implied federalism limitations. Coenen, however, raises three major questions about Tribe's portrayal of the modern Court's work and its methodological and doctrinal implications.First, Coenen asks whether Professor Tribe's dualistic portrayal of the modern Court's work represents an oversimplification. Examining a variety of modern rulings, Coenen concludes that the two-track depiction both overstates the Court's willingness to use the structural methodology in cases like Saenz and understates its willingness to use that methodology in true "fundamental rights" cases.Next, Professor Coenen notes that the Court's holding in Saenz, which invalidated a seemingly quite plausible state law, appears inconsistent at first blush with the Rehnquist Court's strong pro-states-rights stance. Coenen argues, however, that Saenz is best understood within a larger view of why state autonomy has value. State autonomy, he says, is merely a means to other ends, and the benefits from diverse state communities exist only when interstate mobility is unimpeded.Lastly, although Professor Coenen endorses the view that structural inference should be employed in more orthodox cases involving claimed infringements of rights, he expresses concern about Professor Tribe's suggestion that courts should safeguard individual autonomy because it is connected up with institutional arrangements. More specifically, Coenen worries that this way of thinking about rights might ultimately narrow -- rather than broaden -- the Court's use of structural inference. Coenen suggests that courts should not apply structural inference in individual-liberty cases on the theory that those cases have institutional dimensions. Rather, courts should use the methodology of structural inference in individual-liberty cases because individual liberties are important in and of themselves. Dan T. Coenen Constitutional Law http://works.bepress.com/dan_coenen/16 http://works.bepress.com/dan_coenen/16 Fri, 05 Sep 2008 05:32:56 PDT Testimony before the Subcommittee on Commercial and Administrative Law concerning H.R. 1544, the Federal Agency Compliance Act, intended "to prevent Federal agencies from pursuing policies of unjustifiable nonacquiescence in, and relitigation of, precedents established in the Federal judicial circuits." Dan T. Coenen Courts http://works.bepress.com/dan_coenen/15 http://works.bepress.com/dan_coenen/15 Fri, 05 Sep 2008 05:32:51 PDT Priorities. The very word sends chills down the sane lawyer's spine. But if fear and loathing of Article Nine's priority scheme served as a deterrent to undertaking this enterprise, they served as an incentive as well. The complexity of the priority rules is matched only by their importance, for as long as secured financing flourishes, priority disputes over personal property are inevitable. It is the purpose of this project to set forth and explore the body of law that resolves those disputes: the priority rules of Article Nine. Dan T. Coenen Uniform Commerical Code http://works.bepress.com/dan_coenen/14 http://works.bepress.com/dan_coenen/14 Fri, 05 Sep 2008 05:32:47 PDT This Article discusses the origins of, practices typifying, and laws directed at contemporary loansharking. Loansharks prosper by exploiting their victims' fears, and in case after case this same fear threatens to silence key government witnesses. The result is problems for the prosecutor, who must attempt to protect his witnesses and develop alternative methods of proof. The Article explores prosecutorial difficulties caused by witness fear and identifies options the prosecutor may use in attempting to neutralize the problem. Ronald Goldstock Courts http://works.bepress.com/dan_coenen/13 http://works.bepress.com/dan_coenen/13 Fri, 05 Sep 2008 05:32:41 PDT In this Essay, I will pause to note some reasons why the "sham decision" critique of structural review is, for me, unpersuasive. I also will offer a few comments on the proper relationship between structural and substantive review. I note, in particular, that an endorsement of "activist" structural review need not lead to a "nonactivist" approach to substantive review, far less to its total abandonment. I also suggest that a vigorous embrace of structural rules may well lead to more, rather than less, overall judicial protection of fundamental rights. Dan T. Coenen Constitutional Law