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Friday, July 22, 2011

Winn, Hein, or Both?

This is for the Fed Courts teachers in the audience. And I guess this is what constitutes a bleg:

In teaching taxpayer standing, are you planning on using Hein v. Freedom From Religion Foundation (from 2007), ACSTO v. Winn (from this past term), or both? And what is the reason for any approach? Both cases are fairly long (Hein runs about 22 pages in the casebook and Winn runs 41 pages in the slip op) and I am reluctant to assign to substantial cases for what is a fairly small topic in a sprawling class. The majorities both do a pretty good job of tracing the development of the Flast doctrine. And Winn is particularly notable for Justice Kagan's well-written dissent. But they are different enough in coverage as to not be fully fungible.

Please feel free to leave ideas in the Comments.

Posted by Howard Wasserman on July 22, 2011 at 03:02 PM in Howard Wasserman, Teaching Law | Permalink

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Comments

Well, I think that Winn is much more interesting than Hein doctrinally. You can cover what Hein did in a minute, but Winn's actually interesting for Kennedy's reconceptualization of Flast as a case about extraction, whereas Kagan eloquently (though not at all persuasively, in my view) defends the traditional understanding of Flast. All I would even consider teaching from Hein is Scalia's opinion.

Posted by: Asher | Jul 24, 2011 11:14:52 AM

I would teach Flast and tell the students about the two recent cases. They might be posed as hypos to the student presenting Flast. The majority of the justices still work inside the Flast outline/paradigm so student need to know that much. I would also note that some of the justices, still fewer than an majority, have called for overruling Flast. Establishment Clause standing otherwise is too esoteric to cover all three cases in detail in a Fed Courts course -- there are lots more standing cases that have a greater claim on class time.

In my first amendment casebook, I cover all of standing in a 2 page note and it is adequate, if I say so myself.

Posted by: Thomas E. Baker | Jul 22, 2011 4:46:47 PM

I don't teach fed courts (or anything, for that matter), but in my opinion the cases are sufficiently different to merit the inclusion of both. Importantly, Hein is about executive branch expenditures, whereas Winn is about tax credits, and although both cases investigate the reach of the Flast v. Cohen exception, they deal with different legal schemes. I also think it's important because taking both cases together demonstrates the trend to undermine Flast, to the point of almost complete erosion; something that you would not get from reading only one of the cases. Finally, and this is perhaps overkill, seeing both cases together demonstrates the complete irrationality of standing doctrine, as currently conceptualized by the Court. Looking at only one taxpayer suit might cause one to think that it's an aberration, when in fact it clearly is not.
Although both cases are long, I think you can probably focus on one and excerpt the other so as not to make the reading load too heavy.

Posted by: Adam | Jul 22, 2011 3:24:30 PM

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