Vol. 31 No. 8 (October 2021) pp. 136-138POWER, CONSTRAINT, AND POLICY CHANGE: COURTS AND EDUCATION FINANCE REFORM, by Robert M. Howard, Christine H. Roch, Susanne Schorpp, and Shane A. Gleason. Albany: SUNY Press, 2021. 162pp. Cloth $95.00. ISBN: 978-1-4384-8135-7. Paper $31.95. ISBN: 978-1-4384-8136-4
Reviewed by Joseph V. Ross, Department of Political Science and Public Administration, Florida Gulf Coast University. Email: jvross@fgcu.edu.
The issue of school finance has been a lightning rod in state politics in recent years. POWER, CONSTRAINT, AND POLICY CHANGE: COURTS AND EDUCATION FINANCE REFORM is an important exploration of the broader topic with a specific focus on interbranch disputes between state legislatures and state supreme courts. The issue is complex enough to warrant a book-length treatment and careful consideration of various perspectives, as the authors have done here. The result is a compelling theory of when courts take action in education finance and how they justify their decisions through their own precedent and those of other state supreme courts. Though some aspects of the analysis are a little short on details, this work succinctly contributes to our understanding of how state supreme courts engage in the policy arena and how decisions and precedents are diffused across the country.
At first glance, it seems like the authors are tackling two distinct questions in the course of the book—when courts take action and how courts influence each other across the states—but the connections between these topics become clearer as the book unfolds. Aside from the excellent background on public education presented in Chapter 1 that sets the stage for the examination of the funding issue, the authors present a theoretical model of the policy space in which legislatures and courts may act, reminiscent of Langer’s (2002) work on judicial review in the states.
They continue to elaborate in Chapter 2 on the ways that the legal and political context within a state may influence the decision to take action on education finance reform. For example, legislators acting prospectively should feel pressure from organized interests, particularly teachers’ unions, when considering reform. In contrast, justices should be less likely to engage proactively, meaning that their decision to order education finance reform will result more from inaction by the legislature. The theoretical explanations here are comprehensive and compelling, though the extensive tests of legislative and judicial action could use further explanation and justification. Still, the authors have done an admirable job modelling a dynamic interaction between the branches in two separate models. Indeed, a further examination of the intricacies of the institutional responses to action or inaction from the other branch could be the basis for another book-length study in the future.
The next chapters move in a different direction, however, as the authors consider the diffusion of court-ordered education finance through citations and the policies themselves. Education finance is an ideal area for this kind of research, as the authors note, because it is wholly confined to the state courts. In other types of cases, we would need to account for the possibility that justices are anticipating a response from the U.S. Supreme Court. The Court’s decision in SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ (1973) effectively neutralized that possibility as the justices announced that inequities in public education funding did not violate the U.S. Constitution. As a result, the cases analyzed by the authors start in 1974, when justices could be wholly focused on the varying pressures within their states.
Social network analysis is used to examine the patterns of citations, which the authors explain in Chapter 3. Using these data, the authors produce measures of prestige for each state supreme court in the different waves of education finance reform, following Caldeira’s (1983, 1985) approach. Notably, professionalism measures are not as predictive of prestige as we might expect. That might be an artifact of the variation in the number of cases courts heard within this area of law, of course. The measures are nonetheless an important contribution to this broader topic within the state court literature, although some further discussion of how the different measures presented in this chapter differ could enhance their application in future studies.
Perhaps the most important contribution of the book is taking this examination a step further and considering the diffusion of policy rather than citations alone. As the authors explain, citations are simply not enough to demonstrate the influence from one court to another. Citing another court’s precedent can be a strategic signal to legislators and other legal actors, but a court is not required to cite another state’s court, even when they are following their lead in the content of their decision. The authors take account of this fact in Chapter 4 by repeating the social network analysis of the previous chapter using the decision to order education finance reform as the dependent variable rather than a citation of another court’s precedent. In other words, they assess whether a court produces the same policy outcome as another court without regard to whether the justices have cited that court’s decision in their own opinion. Such an approach moves us away from asking which courts are the easiest or most meaningful to cite in a decision and towards considering which courts are truly policy leaders among their peers.
This line of inquiry continues in Chapter 5, as the authors apply a more explicit policy diffusion frame to their analysis. Courts are not usually the subject of policy diffusion studies, and the authors are careful in articulating the differences we would expect when extrapolating a theory of diffusion from a legislative context. Most important is the lack of “competition” between state courts that we would expect between legislative bodies seeking to attract investment and tax revenue. The concept of emulation is instead more relevant to justices as they decide whether to follow the lead of other courts and order reform of their state’s education funding policies. Using dyadic data that pairs each state supreme court with each other, the authors evaluate the conditions that are most conducive to policy emulation in this area of law. It is in this analysis that we get the clearest picture of the legal and political environments that encourage courts to mandate reform. One of the more striking findings, presented in a series of graphs, is that emulation of court-ordered reform by liberal courts is more likely in more conservative political environments. That is to say that liberal courts can be leaders when they are in an ideologically compatible political context but will wait to follow the lead of sister courts when they must anticipate a response from a conservative state government and populace.
The concluding chapter is, like the book itself, succinct and informative. The authors have brought together several different literatures to build a foundation for future studies of education finance, but also judicial behavior more broadly. While some of the analyses could benefit from further elaboration of some details, there is much to appreciate here, particularly the way that the theory lays out a path for future research. One aspect of the decision-making environment that is (understandably) left out of the authors’ models is the information provided by attorneys in their briefs and arguments. We assume that justices are cognizant of a wide range of details about other state courts when they make decisions, but do participating attorneys play a role in transmitting out-of-state precedents to justices? That topic is obviously outside the scope of this book, but it is one of many possible questions that can benefit from the theoretical foundations presented here.
CASES:
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ, 411 U.S. 1 (1973).
REFERENCES:
Caldeira, Gregory A. 1983. “On the Reputation of State Supreme Courts.” POLITICAL BEHAVIOR 5(1): 83–108.
———. 1985. “The Transmission of Legal Precedent: A Study of State Supreme Courts.” AMERICAN POLITICAL SCIENCE REVIEW 79(1): 178–94.
Langer, Laura. 2002. JUDICIAL REVIEW IN STATE SUPREME COURTS: A COMPARATIVE STUDY. Albany: State University of New York Press.
© Copyright 2021 by author, Joseph V. Ross.
