Volume 81, Number 6

December 2006

Interstate Inequality in Educational Opportunity

Goodwin Liu

For the past half-century, legal and policy efforts to address unequal educational opportunity have largely focused on disparities between schools in the same district or between districts within a state. But the most substantial component of educational inequality across the nation is not disparities within states but disparities among states, a problem long neglected in constitutional law and public policy. In a companion article, Professor Liu argues that the Fourteenth Amendment obligates Congress to ensure that every child has adequate educational opportunity to achieve equal national citizenship. This Article examines the empirical and policy dimensions of the problem of interstate inequality. It analyzes disparities across states in terms of educational standards, resources, and outcomes, showing that the disparities disproportionately burden children who are poor, minority, or limited in English proficiency. Further, it demonstrates that interstate disparities in school spending have more to do with the ability of states to finance education than with their willingness to do so, highlighting the need for a robust federal role in promoting greater equality. Yet federal education policy has done little to ameliorate interstate disparities in education standards and resources; in fact, significant elements of current policy tend to reinforce rather than reduce such disparities. The Article thus urges Congress to pursue, within an existing framework of cooperative federalism, reforms that create national education standards and an expanded federal role in school finance to serve as building blocks of a national policy to guarantee all children educational adequacy for equal citizenship.

Novel Criminal Fraud

Samuel W. Buell

The crime of fraud has been underdescribed and undertheorized, both as a wrong and as a legal prohibition. These deficits contribute to contention and uncertainty over the practice of punishing white-collar crime. This Article provides a fuller account of criminal fraud, describing fraud law’s open-textured, common law, and adaptive qualities and explaining how fraud law develops along its leading edge while limiting violence to the legality principle. The legal system has a surprising, often overlooked methodology for resolving whether to treat novel commercial behaviors as frauds: Courts and enforcers often conduct an ex post examination of whether an actor’s mental state included “consciousness of wrongdoing.” The Article summarizes this methodology’s history and contemporary applications before moving to the question of its justification. Among possible normative justifications for this unusual fault methodology, one fits best and involves the fewest complications: An actor’s pursuit of a novel course of conduct (that involves, as with all fraud, some deception causing or threatening harm), in the face of actual knowledge that prevailing norms reject that behavior, renders the actor equivalently blameworthy to an actor who intentionally pursues a course of conduct that the law has previously described as fraud. The Article concludes that ex post decisionmakers should continue to apply this methodology, despite its imperfections; that importing the methodology into fraud’s conduct rules would be possible but also perilous; and that the methodology identifies the subset of frauds for which criminal sanctions are justified if one purpose of sanctioning fraud is to assess blame.

Welfare Polls: A Synthesis

Matthew D. Adler

“Welfare polls” are survey instruments that seek to quantify the determinants of human well-being. Currently, three welfare polling formats are dominant: contingent valuation (CV) surveys, quality-adjusted life year (QALY) surveys, and happiness surveys. Each format has generated a large, specialized, scholarly literature, but no comprehensive discussion of welfare polling as a general enterprise exists. This Article seeks to fill that gap.

Part I describes the trio of existing formats. Part II discusses the current and potential uses of welfare polls in governmental decisionmaking. Part III analyzes in detail the obstacles that welfare polls must overcome to provide useful well-being information, and concludes that they can be genuinely informative. Part IV synthesizes the case for welfare polls, arguing against two types of challenges: the revealed-preference tradition in economics, which insists on using behavior rather than surveys to learn about well-being; and the civic republican tradition in political theory, which accepts surveys but insists that respondents should be asked to take a “citizen” rather than “consumer” perspective. Part V suggests new directions for welfare polls.


Whether Consent to Search Was Given Voluntarily: A Statistical Analysis of Factors That Predict the Suppression Rulings of the Federal District Courts

Brian A. Sutherland

Every year, police officers conduct thousands of searches without search warrants, relying instead on individuals’ consent as authority for these searches. If an individual later denies that his consent was given voluntarily, the trial court must review his claim and determine whether to suppress evidence obtained during the consent search. The question of voluntariness is difficult to assess, however, despite attempts by appellate courts to provide guidepost factors for trial court analysis. For this Note, the author gathered consent search cases and used statistical methods to analyze whether a correlation exists between a federal district court’s decision to suppress evidence and various factors relating to the voluntariness of consent. The study shows a statistically significant correlation between the suppression of evidence and factors related to police misconduct, and the absence of correlation for factors not related to police misconduct. Drawing on these statistical findings, this Note concludes that the voluntariness requirement is a legal fiction serving to balance the needs of effective law enforcement against the rights of suspects.

Implementing Disaster Relief Through Tax Expenditures: An Assessment of the Katrina Emergency Tax Relief Measures

Meredith M. Stead

Over the past several decades, Congress has turned increasingly to tax expenditures rather than to direct outlay programs to implement social welfare programs. Such a trend creates economic distortions and has proven disadvantageous to taxpayers in lower socioeconomic classes. The newest twist is in the area of disaster relief. Unprecedented before 2001, tax relief targeted to a disaster in a specific geographic region has now been established on two occasions-in the wake of the 9/11 attacks and in the aftermath of Hurricane Katrina. This Note argues that, in a disaster, both the vulnerability of lower-income taxpayers and the weaknesses of the Internal Revenue Code as an instrument for social programs are amplified. This problem was particularly acute after Hurricane Katrina. Congress should therefore reconsider the current trend toward using tax expenditures rather than direct relief in such situations, or alternately structure other relief to correct for its shortcomings.

The Civil Commitment of State-Dependent Minors: Resonating Discourses That Leave Her Heterosexuality and His Homosexuality Vulnerable to Scrutiny

Maribel Morey

When qualified mental health evaluators’ recommendations for the involuntary civil commitment of state-dependent minors complement a state’s judicially recognized interests in promoting heterosexual behavior among state-dependent minors while controlling state-dependent girls’ heightened heterosexual behaviors, the courts are unlikely to serve as watchdogs of mental health evaluators’ vast discretionary powers. The contemporary resonance between the courts’ and the mental health community’s discourses on adolescent sex facilitates the civil commitment of state-dependent heterosexual girls and nonheterosexual boys, solely on the basis of their sexual behaviors. This powerful resonance threatens the personal autonomy of healthy state-dependent heterosexual girls and nonheterosexual boys. In light of this threat, Morey proposes that before qualified evaluators can recommend adolescent wards of the state to psychiatric hospitals for sexualized behaviors, they should be required to express in writing how the adolescent’s behavior is a direct symptom of an emotional disturbance from past sexual abuse. Otherwise, qualified evaluators’ ability to rely on gender-based stereotypes of what constitutes appropriate or risky sexual behavior among state-dependent minors will remain largely unchecked.