YLJ Online Symposium: “Winn and the Inadvisibility of Constitutionalizing Tax Expenditure Analysis” and “A Winn for Educational Pluralism”


The Yale Law Journal Online has published the first two installments in our new series, Summary Judgment, which will feature timely responses to recent Supreme Court decisions from academics and practitioners. The two inaugural pieces comment on the Court’s April decision in Arizona School Tuition Organization v. Winn, 131 S.Ct. 1436 (2011), in which a five-Justice majority held that taxpayers do not have standing to challenge the constitutionality of state tax credits that support religious schools and other educational institutions.

In Winn and the Inadvisibility of Constitutionalizing Tax Expenditure Analysis, Professor Edward A. Zelinsky responds to Justice Kagan’s blistering dissent in Winn. In that dissent, the Court’s most junior Justice draws on tax law scholarship to argue that tax credits and other tax expenditures are economically indistinguishable from direct spending. Zelinsky adopts a skeptical approach toward Justice Kagan’s core claim. According to Zelinsky, although tax expenditure analysis has helped policymakers and legislators with regard to budgetary matters, its utility does not extend to Establishment Clause jurisprudence. After decades of debate, tax law scholars have still not arrived at any satisfactory definition of tax expenditures. Ultimately, Zelinsky writes, “the Court is ill-advised to invoke tax expenditure analysis” in its Establishment Clause cases because “[a]t the end of the day, we do not know what a tax expenditure is.”

In A Winn for Educational Pluralism, Professor Nicole Stelle Garnett assesses the implications of the Winn decision for students, families, and communities. She argues that scholarship tax credits can stem the tide of Catholic school closures, which are linked to increased disorder, crime, and neighborhood disintegration. Drawing on her own past research, she also suggests that “scholarship tax credits may . . . enable cities to retain the young parents who all too frequently flee to suburbs and their high-performing public schools.” She concludes that Winn, by opening constitutional space for scholarship tax credit programs, represents “a victory for civil society.”

The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.

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