Education Rights and Wrongs: Publicly Funded Vouchers, State Consitutions, and Education Death Spirals

A response to Julie F. Mead, The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 FORDHAM URB. L.J. 703 (2015)

The Political Economy of Education Federalism

The No Child Left Behind Act represents the federal government\u27s most significant foray into the nation\u27s elementary and secondary public school policymaking terrain. Although the Act undertakes unassailable policy goals, its critics argue that it represents an unwarranted federal intrusion into education policymaking, generates unintended policy consequences, and amounts to an unfunded federal mandate. Constitutionalists dwell on the Act\u27s threat to structural federalism as it plausibly strains Congress\u27s conditional spending authority. The coercive force that federal education funds exert on local school districts and states attracts particular attention. The No Child Left Behind Act, however, safely navigates through an even more rigorous conception of the coercion prohibition as articulated by the Court in South Dakota v. Dole. The Act, while coercive, is not unconstitutionally coercive as it imposes only an opportunity cost on states willing to forego federal funding. Although the No Child Left Behind Act does not violate the conditional spending doctrine as presently understood, from a policy perspective the Act generates important coercive force. Such policy coercion arises due to the unusually close nexus among various education policies, including student achievement, curriculum, standards and assessments, and finance. Understanding this crucial subtlety about the political economy of education federalism is one key to understanding the full, ongoing debate surrounding intergovernmental squabbles over education policy among federal, state, and local officials

Preliminary Thoughts on the Virtues of Passive Dialogue

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary\u27s participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary\u27s participation take? Debates over the judiciary\u27s appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this debate and tests these models from the vantage point of one specific jurisprudence - school finance - and within a discrete judicial setting - state supreme courts. While this vantage point limits my analysis, it offers the advantage of keeping the judicial context constant so as to better isolate the differences that separate the consequences flowing from the active and passive judicial participation models. Although school finance decisions by state supreme courts are structurally tilted in a manner favorable to the active model, results from a modest comparison provide more support for the passive model

The Importance of Being Empirical

Legal scholarship is becoming increasingly empirical. Although empirical methodologies gain important influence within the legal academy, their application in legal research remains underdeveloped. This paper surveys and analyzes the state of empirical legal scholarship and explores possible influences on its production. The paper advances a normative argument for increased empirical legal scholarship

The Courts, Educational Policy, and Unintended Consequences

La Cordillera Huanzo forma parte de las cordilleras ubicadas en la zona sur del país y se ubica al norte de las cordilleras Ampato y Chila. El ámbito de influencia de la cordillera tiene un área de 13,761 km2 y una longitud de 175 km. Sus límites geográficos están comprendidos entre los paralelos 15°21'07.48" y 14°03'17.54" latitud sur y entre los meridianos 73°24'12.55" y 71°46' 43.38" longitud oeste. Políticamente, el ámbito se extiende parcialmente sobre los territorios de los departamentos de Apurímac en las provincias de Antabamba, Cotabambas y Grau; Arequipa en las provincias de Castilla, Caylloma, Condesuyos y La Unión; Cusco en la provincia de Chumbivilcas; y Ayachucho en las provincias de Parinacochas y Paucar del Sara Sara.Ministerio del Ambiente - MINA

Equal Educational Opportunity, Hollow Victories, and the Demise of School Finance Equity Theory: An Empirical Perspective and Alternative Explanation

Professor Heise reports findings from his on-going empirical study of judicial impact in the school finance context. The study employs interrupted time series analyses to explore the independent effect of successful school finance equity court decisions on two key outcome variables, centralization and total educational spending levels. The results cast some doubt about long-held assumptions regarding the efficacy of court decisions. The author argues that the results also uncover important clues that help explain the recent fundamental shift in school finance litigation theory from equity to adequacy

Criminal Case Complexity: An Empirical Perspective

Criminal case complexity persists as a central tenet in many academic and public critiques of our legal system even though little is known about two critical questions. One question is whether key actors (juries, attorneys, and judges) view case complexity similarly. In other words, do juries, attorneys, and judges agree on whether a case is complex? A second question involves the determinants of case complexity for each group. That is, what factors make a case more (or less) complex for juries, attorneys, and judges. This article explores both questions from an empirical perspective with the benefit of recent data from four jurisdictions. The data are important because, within the context of criminal cases, they permit analyses of agreement levels among the three key actors. Results suggest that the three sets of actors possess slightly different views on whether cases are complex. Judges reported the lowest levels of case complexity; jurors the highest. Moreover, important variation exists in terms of what made cases complex for each group. The results implicate legal reform efforts. No clear consensus exists among the critical actors on complexity perceptions. Many of the variables that influence case complexity fall outside of reformers’ reach. Variables within the reach of policy do not appear to systematically reduce case complexity

The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism

Over the last century, empirical legal scholarship has joined the ranks of the mainstream within the legal academy. In this article, Professor Heise traces the history of legal empiricism and discusses its growing role within the legal academy. First, the article traces legal empiricism through the twentieth century from the legal empiricism movement of the early twentieth century, to post-World War II efforts to revive legal empiricism, including the Chicago Jury Project and large-scale foundational support for empirical legal research, through current support for legal empirical research from both the law schools and other research centers. The article then discusses several factors which have influenced the recent growth in legal empirical research including: the increasing breadth and maturity of legal scholarship overall, an increase in collaborative research by law professors, a growing number of available datasets and sophisticated computational tools for statistical analysis, and an increasing call for empirical research from the bench. Next, the article uses empirical judicial decision-making literature to illustrate current trends in empirical legal research, including the two predominant research models of behaviorism and attitudinalism, and developing research in the areas of the legal, public choice, and institutionalism models for explaining judicial decision making. Finally, the article discusses some of the inherent limitations of current research methodologies and available databases, but concludes that structural limitations aside, empirical legal scholarship has arrived as a research genre and will continue to flourish