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Spring 2010 - Con Law II: Welfare State

Levinson, Sanford V

Credit Hours: 3  Course ID: 381C  Unique # 28822

Meeting Day(s)TimeLocation
MW2:00 - 3:15 pmTNH 3.114
Exam Type  Date Time      Name Range Regular Room Extegrity Room
Final Thursday, May 6 8:30 am - A-Z
2.123
2.123

Description
This course will look at a variety of doctrinal issues that present themselves with the reality of the modern American welfare state, which is not only not going away but gives every indication of being expanded.  My definition of a "welfare state" is quite simple:  It is the supply of goods by the state to selected citizens at a cost below the price they would have to pay if they were purchasing the goods in a market.  The example that comes closest to home is the supply of a seat at the University of Texas Law School, inasmuch as the tuition, however high it is becoming, does not in fact cover the full cost of the good being received.  There are, of course, more common definitions of public welfare, including, e.g., food stamps, medicaid, and the like, but what all of them have in common is the redistribution necessarily involved in supplying goods at less than they cost the state to provide them.  Someone has to cover the difference, after all.

So what kinds of issues will be studied:  First, what are the basic constitutional problems in having a redistributive welfare state at all? There was a time when it was thought to be presumptively unconstitutional.  Then, during the New Deal, it became viewed as constitutionally permissible.  During the 1960s, there was a movement to "constitutionalize" the welfare state by making the supply of certain goods constitutionally required.  This last movement failed, but, obviously, the welfare state remains permissible because it continues to exist (and was expanded even under the Bush Administration with the passage, for example, of the prescription drug benefit for the elderly).  So that generates a number of more precise issues, including, but not limited, to:

1) what sorts of "due process" limitations attach to the state's decision to grant or, more to the point, deny welfare benefits?

2) what conditions can the state place on the recipients of benefits? E.g., can an educational scholarship be made contingent on studying a particular subject or on not studying a particular subject, such as pastoral counseling in preparation for going into a religious ministry.  We will, indeed, spend quite a bit of time looking at the intersection of religion and the welfare state.

3) what distinctions can be drawn when deciding who "merits" public welfare? Consider, for example, the preference that the University of Texas Law School gives to Texas residents (and, therefore, the "dispreference" to out-of- staters).  If that is constitutionally permissible, then what, if anything, is the problem with preferring given racial or ethnic groups?

All of these problems, and more, will be studied, largely, though not exclusively, through the examination of recent judicial opinions.  The principal text, therefore, is Paul Brest et al., Processes of Constitutioanl Decisionmaking (5th ed.  2006).  In addition, though, I may assign modest amounts of political theory and/or law review articles that attempt to provide solutions to some especially knotty problems, such as "conditional funding."

Prerequisite:  Con Law I.

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