New York University Public Law and Legal Theory Working Papers

Document Type



Notre Dame Law Review, 2012


In a federal system, which level of government — federal, state, or local — should pursue educational innovations? This article defends the presumption that, the higher the level of government pressing the educational innovation, the stronger the presumption that the innovation should be modest. The argument for this presumption rests on the premises, defended in the article, that (1) there are few scale economies in K-12 education that cannot be realized by subnational governments and (2) national governments suffer from diseconomies of scale that make them less responsive to parental networks most capable of insuring educational services are well-monitored for the welfare of children. In light of these two principles, national intervention in educational policy-making should be reserved for two goals – first, provision of genuinely national public goods the benefits of which plainly cross state borders (for example, educational assistance for indigent households and provision of skills related to national defense) and, second, national supervision of subnational political processes to insure democratically accountable representation of ethno-cultural and other minorities in educational policy-making.

Date of Authorship for this Version



Federalism, Constitutional Law, Education