In Brown v. Board of Education, the Supreme Court observed that “education is perhaps the most important function of state and local governments” and held that it was a public service that “must be made available to all on equal terms.” While Brown removed one obvious barrier to equal educational opportunities, it left in place another: the obstacle faced by poor school districts that wish to provide an education to their students “on equal terms” relative to the education offered by wealthier school districts within a State.
Nineteen years after Brown, the Court decided another equal-protection case, San Antonio Independent School District v. Rodriguez, which gave the Court an opportunity to remove, or at least ameliorate, wealth-based barriers to equal educational opportunities as well. But the Court rejected the plaintiffs’ claims. This Essay explains what happened in Rodriguez, describes what happened in the States in the thirty-five years after Rodriguez and raises some questions prompted by the experience.
Issue 8
Authority and Authorities
Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities—cases, statutes, constitutions, regulations, articles, and books, primarily—are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law’s use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.
The Uneasy Case for Transjurisdictional Adjudication
Federal courts often decide cases that include matters of state law, while state courts often decide cases that raise matters of federal law. Most of these cases are decided within the court system in which they originate. Recent commentary advocates more transjurisdictional adjudication through the expanded use of existing procedural devices, and development of new devices. Some commentators endorse greater use of certification by federal courts, while others advocate greater use of transjurisdictional procedural devices to increase the availability of a federal forum to resolve federal legal issues. In this Article, I call for refinement of this approach and argue that commentators have overlooked several looming obstacles. First, the ability of state courts to resolve issues of state law and federal courts issues of federal law relies upon the erroneous assumption that issues of federal and state law are readily separable. Second, the use of transjurisdictional procedural devices that send back to state court state law issues that federal courts otherwise would decide run the risk of admitting state court bias, or the appearance of bias, against out-of-state litigants. Third, commentators underestimate the extent to which transjurisdictional adjudication relies upon cooperation between court systems. Identifying these obstacles leads to a fuller recognition of the costs and benefits of transjurisdictional adjudication, which in turn is useful as a metric against which to measure existing and proposed transjurisdictional procedural devices and as an aid in refining existing devices.