Neither “Creatures of the State” nor “Accidents of Geography”: The Creation of American Public School Districts in the Twentieth Century
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American public school districts numbered more than 200,000 in 1910. By 1970 there were fewer than 20,000. The decline was almost entirely accounted for by the consolidation of one-room, rural schools into larger school districts. Education leaders had long urged districts to consolidate, but local residents voted to do so, I argue, only after high school education became widespread. Graduates of one-room schools found it difficult to get into high school. Rural districts that were not “making the grade” were unattractive to home and farm buyers, and the threat of reduced property values induced voters to agree to consolidate.
For very helpful feedback on prior versions of this piece, I thank Russell Engler, David Luban, David Hoffman, Tal Kastner, Timothy Mulvaney, Michael Pollack, Tanina Rostain, Kathryn Sabbeth, Emily Saltzberg, Emily Satterthwaite, Jessica Steinberg, Neel Sukhatme, and Josh Teitelbaum. This Article benefited from presentations at the Harvard-Yale-Stanford Junior Faculty Forum, the Law and Society Association Annual Meeting, the 2024 Access to Justice Roundtable, the Property Worksin- Progress Workshop, the State and Local Courts Workshop, and the State and Local Government Law Workshop. Emmeline Basco provided excellent research assistance and Yi Yao provided excellent assistance with data analysis. I am very grateful to the editors of The University of Chicago Law Review for their outstanding editorial work. All errors are my own.
Eviction cases make up over a quarter of all cases filed in the federal and state civil courts and have enormous consequences for tenants, who are nearly always unrepresented by counsel. These cases overwhelmingly settle, yet settlement scholars have entirely overlooked eviction both empirically and theoretically. The Article presents results from the first empirical study of eviction settlement negotiations. The study involved rigorous analysis of an original dataset of over one thousand hand-coded settlements, observations of settlement negotiations in the hallways of housing court, and dozens of interviews. The findings demonstrate that unrepresented tenants—who make up the vast majority of tenants in the eviction system—have no meaningful influence over settlement terms. Rather, the terms are set by landlords and their attorneys. Drawing on the empirical findings and scholarship about contracts of adhesion, the Article develops the theoretical concept of “settlements of adhesion.”
Thanks to Laura Appleman, Monica Bell, Tan Boston, Curtis Bradley, Emily Buss, Adam Chilton, Justin Driver, Jessica Eaglin, Sheldon Evans, Lee Fennell, James Forman, Cynthia Godsoe, Nyamagaga Gondwe, Bernard Harcourt, Hajin Kim, Brian Leiter, Aaron Littman, Jamelia Morgan, Renagh O’Leary, Farah Peterson, James Gray Pope, Eric Posner, Judith Resnik, Mara Revkin, Anna Roberts, Cristina Rodríguez, Jocelyn Simonson, Kate Skolnick, Fred Smith, Stephen Smith, David Strauss, I. India Thusi, Christopher Williams, and Quinn Yeargain for thoughtful comments and conversations, and the participants of The University of Chicago Faculty Workshop, Northwestern Faculty Workshop, Yale Public Law Workshop, CrimFest, Decarceration Workshop, and Criminal Justice Roundtable for their helpful engagement. Thanks also to the editors at The University of Chicago Law Review for their excellent editorial support. The author thanks the Paul H. Leffmann Fund for research support.
In recent years, many states passed constitutional amendments prohibiting modern day slavery in the form of forced prison labor allowed by the Thirteenth Amendment. However, the state amendments' text alone has not ended prison slavery in those states. This Article examines why. It grounds its discussion in the history of American slavery after the Civil War as well as the various attempts of legislation, litigation, and constitutional amendments to dismantle forced prison labor. Drawing on this discussion, it suggests how organizers might craft these amendments and how judges and lawyers should interpret them. It argues that, ultimately, amending constitutional text alone is not enough. To achieve their goals amendments must work in tandem with litigation, governmental structural reform, and the inevitable political battles that arise over the shape of the criminal legal system.
I would like to thank Professor Geoffrey Stone and members of The University of Chicago Law Review including Owen Hoepfner, Jack Brake, Hannah Zobair, Ryan Jain-Liu, Zoë Ewing, Jackson Cole, and others for contributing to the publication of this Comment.
The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. In this Comment, Brady Earley offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. The Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish and their objection to Ohio’s flashing light requirement for buggies. Applying DiD to this conflict reveals that Ohio’s buggy light law led to an estimated 23% reduction in buggy-related crashes compared to Michigan and Kentucky—states with less restrictive buggy requirements. Beyond this case study, the Comment also discusses how DiD can help address recent Supreme Court conflicts over tax exemptions for religious organizations, LGBTQ-themed books in schools, and religious charter schools. These examples grapple with the problems and the showcase the possibilities of a data-driven method to address necessity in free exercise.