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http://ssrn.com/abstract=1121511
 
 

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Forceful Minimalism, Hein v. Freedom from Religion Foundation, Inc., and the Prudence of 'Not Doing'


Brendan R. McNamara


University of Washington - School of Law

May 2008

Washington Law Review, May 2008

Abstract:     
Proponents of judicial minimalism argue that courts should issue narrow rulings that address only the issues necessary to resolve the case at hand and should avoid needlessly broad rulings that could result in unforeseen consequences. The recent Supreme Court decision in Hein v. Freedom From Religion Foundation, Inc. provides a compelling case study of judicial minimalism. Resisting opposing calls for broader rulings from both the concurring and dissenting justices, a plurality of the Court followed a minimalist approach to resolve a difficult question of taxpayer standing. Generally, federal taxpayers do not have standing to challenge government expenditures of tax funds in federal court. In Flast v. Cohen, the Court carved out a narrow exception for challenges to expenditures that allegedly violate the First Amendment's Establishment Clause. This exception requires a connection between the constitutional violation and Congress's use of its taxing and spending power. Hein involved a challenge to purely executive actions, and the Court faced the issue of whether to expand Flast to cover such actions. While some Justices called for completely overruling Flast in all situations and others called for expanding Flast to cover purely executive actions, the plurality took a narrower approach, denying standing without expanding or contracting the taxpayer standing doctrine. This Note builds on prior scholarship that advocates for judicial minimalism by arguing that Hein's plurality opinion demonstrates judicial minimalism succeeding in practice.

Number of Pages in PDF File: 30

Keywords: Hein, Minimalism, Standing, Establishment Clause, Flast

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Date posted: June 26, 2008  

Suggested Citation

McNamara, Brendan R., Forceful Minimalism, Hein v. Freedom from Religion Foundation, Inc., and the Prudence of 'Not Doing' (May 2008). Washington Law Review, May 2008. Available at SSRN: http://ssrn.com/abstract=1121511

Contact Information

Brendan R. McNamara (Contact Author)
University of Washington - School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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