Law Commons^™

An Offer She Can’T Refuse: When Fundamental Rights And Conditions On Government Benefits Collide, Marie Failinger

Faculty Scholarship

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 …