Scott R. Bauries (University of Kentucky College of Law) has posted The Education Duty (47 Wake Forest Law Review 101 (2012) (Forthcoming)) on SSRN. Here is the abstract:
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This article makes the case that state legislatures stand in a fiduciary relationship to the people of the state, that this fiduciary relationship imposes duties of loyalty and care, and that these duties of loyalty and care underlie even the specific affirmative duties that state constitutions impose on state legislatures to legislate toward particular substantive policy goals, such as education. The article is the first to approach state constitutional education clauses in particular, and affirmative constitutional obligations in general, purely from the perspective of legislative duty. It therefore stands both as a needed addition to the literature and as an important counter-point to the extant scholarship, which approaches these provisions almost completely from a rights-based perspective. The article’s approach illustrates that state courts to date have both over-enforced and under-enforced affirmative legislative obligations in state constitutions by choosing either to aggressively apply inherently indeterminate constitutional terms of quality, or to abstain from judicial review altogether due to concerns over this indeterminacy. A fiduciary approach to affirmative legislative duties, in contrast, allows for a form of judicial review that preserves the judiciary’s role in ensuring the performance of legislative duties, while protecting the separation of powers in state governments.
Recommended.