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An Offer She Can't Refuse: When Fundamental Rights and Conditions on Government Benefits Collide

97 Pages Posted: 5 Nov 2011  

Marie A. Failinger

Mitchell Hamline School of Law

Date Written: January 1, 1986

Abstract

This article criticizes the Maher/Harris conditions doctrine on two levels. At the first level, it suggests that the Maher/Harris doctrine cannot justify the Court’s decisions to uphold government withdrawals of funding from rights-exercises. At the second level, after exposing and contrasting the definitional presuppositions of the Court in Maher and Harris with previous cases, the article suggests that the Maher/Harris doctrine is a failure because it uses utterly inadequate rights theory to resolve emerging issues of conflicting human need and conscience, issues which are mediated by government action. The author creates a space for a discussion of a new framework for adjudicating the role of government when it acts as intervenor among citizens through public benefits choices.

Keywords: Counter-ethic of responsibility, rights, government benefits, Maher/Harris, withholding benefits, public benefits

Suggested Citation

Failinger, Marie A., An Offer She Can't Refuse: When Fundamental Rights and Conditions on Government Benefits Collide (January 1, 1986). Villanova Law Review, Vol. 31, p. 833, 1986. Available at SSRN: https://ssrn.com/abstract=1929566

Marie A. Failinger (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

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