ARTICLE: THE NEW JUDICIAL FEDERALISM: DEFERENCE MASQUERADING AS DISCOURSE AND THE TYRANNY OF THE LOCALITY IN STATE JUDICIAL REVIEW OF EDUCATION FINANCE Skip over navigation
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Copyright (c) 1998 The University of Pittsburgh Law Review
University of Pittsburgh Law Review

ARTICLE: THE NEW JUDICIAL FEDERALISM: DEFERENCE MASQUERADING AS DISCOURSE AND THE TYRANNY OF THE LOCALITY IN STATE JUDICIAL REVIEW OF EDUCATION FINANCE

Fall, 1998

60 U. Pitt. L. Rev. 231

Author

Michael D. Blanchard *

Excerpt



I. Introduction

Proponents of the new judicial federalism envision vigorous state constitutional protection of individual rights implicating an increase in the scope of judicial power among state courts. The new judicial federalism requires that the sphere of state courts' influence expand to compensate for the perceived restraint exercised by the federal judiciary, causing state courts to enhance their review of legislative measures under a revitalized state constitution. The new judicial federalism has thus stirred the coals of an old problem--the legitimate extent of judicial review--in the (renewed) context of state constitutional jurisprudence.

One area of the law widely addressed by state courts under state constitutions is that of education finance. Since the United States Supreme Court essentially left education finance questions to the state courts in San Antonio Independent School District v. Rodriguez, 1 many state courts have had the opportunity to review education finance schemes under their respective state constitutions. The results have been mixed. Despite express commands in the state constitutions and the obvious importance of education for both citizen and state, many state courts have failed to find that education is a fundamental right. 2 Other courts have curiously pronounced education to be a fundamental right but then applied rational basis or some other minimal standard of review. 3

More troubling than these decisions, however, is the legal reasoning upon which they rest. For instance, numerous state courts have strained to abdicate their authority over education finance altogether under the separation of ...
 
 
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