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Jennifer Gershberg - One of the best experts on this subject based on the ideXlab platform.
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the legal and ethical implications of public pension reform analyzing the new constitutional cases
Social Science Research Network, 2021Co-Authors: Leigh T Anenson, Jennifer GershbergAbstract:In this thought-provoking and well-researched article, the authors take up the public pension crisis as a case study in the legal and ethical responsibilities of government. Examining six years of litigation, they initially demonstrate—contrary to conventional wisdom—why the Contract Clause fails to provide a meaningful barrier to pension reform. The appraisal then offers a path forward: an ethical framework to be used by policymakers so that decisions are both morally right and politically defensible. The study's contribution to the literature lies in its interwoven discussion of landmark constitutional litigation and contemporary ethical theories applied in the government pension reform context. This interdisciplinary analysis is a first step toward re-thinking how state and local governments can (and should) be legally and morally accountable in this era of austerity.
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clashing canons and the Contract Clause
University of Michigan Journal of Law Reform, 2021Co-Authors: Leigh T Anenson, Jennifer GershbergAbstract:This Article is the first in-depth examination of substantive canons that judges use to interpret public pension legislation under the Contract Clause of the state and federal constitutions. The resolution of constitutional controversies concerning pension reform will have a profound influence on government employment. The assessment begins with a general discussion of these interpretive techniques before turning to their operation in public pension litigation. It concentrates on three clashing canons: the remedial (purpose) canon, the “no Contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. For these three canons routinely employed in pension law, there has been remarkably little research on their history, evolution, or impact. This study spotlights the methodology that underlies these diverse and complicated judgments. Illuminating actual judicial practices lets us better comprehend when, how, and why these canons function. It puts us in a position to choose the most appropriate canon(s) and to otherwise offer improvements on their operation. It also allows us to relate the role of canons to other kinds of legal reasoning. Significantly, studying these canons fills a void in state statutory interpretation as well as contributes to a better understanding of state court enforcement of the Contract Clause that has received scarcely any attention.
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constitutional limits on public pension reform new directions in law and legal reasoning
Social Science Research Network, 2020Co-Authors: Leigh T Anenson, Linda L Barkacs, Jennifer GershbergAbstract:Catastrophe cements a reputation, and the public pension crisis has been rapid and remarkable. Faced with alarming actuarial deficits, state and local legislatures are enacting comprehensive reforms to avoid insolvency. Government employees, however, are challenging these reforms under the Contract Clause. This Article collects the most important constitutional cases on public pension reform over the last six years. It adds a comprehensive study of recent state and federal court practice to the existing literature, including key U.S. Supreme Court decisions that have been missed. It takes stock of forty-eight decisions across twenty-two states, more than a dozen of which reached resolution in the highest courts. It offers a critical examination of key developments, an assessment of emerging challenges, and a new sustained account of the reforms that have succeeded and the grounds for that success. It also provides an appendix and various diagrams documenting our analysis and conclusions. The most surprising findings are that an overwhelming majority of barriers to pension reform are judge-made, meaning that changing case outcomes would not require a constitutional amendment. And that, in any event, reforms have generally been upheld even in those states in which existing doctrine is more protective of employee pensions. These results have practical implications by suggesting that governments can expand the scope of reforms. Clarifying the reasons and reasoning underlying these decisions also has jurisprudential significance. Courts in a number of jurisdictions have yet to rule on constitutional Contract claims and, in those that have ruled, the decisional law is in flux and bordering on incoherence.
James W Ely - One of the best experts on this subject based on the ideXlab platform.
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still in exile the current status of the Contract Clause
Social Science Research Network, 2019Co-Authors: James W ElyAbstract:This article examines the contemporary position of the once-potent Contract Clause in contemporary jurisprudence. It briefly traces the history of the provision from its adoption at the constitutional convention to its robust development by John Marshall and Roger B. Taney. The essay then treats the gradual decline of the Contract Clause during the late nineteenth century and the early twentieth century as an expanding understanding of the police power eclipsed the provision. The article gives attention to the controversial decision in Home Building and Loan Association v. Blaisdell (1934) upholding a mortgage foreclosure moratorium, and stresses that this ruling delivered a near-fatal blow to the efficacy of the Contract Clause. After decades of neglect, the Supreme Court invoked the Clause in the 1970s to strike down state laws impairing contacts, but in so doing promulgated an amorphous multi-part test that did little to reinvigorate the provision. The essay probes the 2018 Supreme Court decision in Sveen v, Melin which simply applied the current test. Of particular interest was the dissenting opinion by Justice Neil Gorsuch in which he expressed a willingness to fundamentally reexamine Contract Clause jurisprudence. The article also looks at Contract Clause litigation at the state level. Lastly, the essay considers the prospects for a meaningful revival of the Contract Clause and offers some proposals to restore the vitality of the provision.
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the Contract Clause during the civil war and reconstruction
Journal of Supreme Court History, 2016Co-Authors: James W ElyAbstract:This essay examines the important role of the Contract Clause in constitutional law during the Civil War and Reconstruction. Although scholars have given little attention to the Contract Clause during this pivotal era, these years witnessed a torrent of litigation involving this provision of the Constitution. The paper surveys a wide range of topics, including the status of Contracts calling for payment in Confederate currency, the legality of state laws barring enforcement of Contracts for the purchase of slaves, and the validity of the Legal Tender Act of 1862. Debt relief measures in the Reconstruction South were a fertile source of Contract Clause litigation. Highly controversial moves by state legislatures to enlarge the amount of homestead exemptions and to apply such exemptions retroactively to prior contacts were blocked by the Supreme Court as violations of the Contract Clause. The essay also treats the interplay between the Supreme Court and the state courts in the interpretation and application of the provision. It concludes that Supreme Court was stalwart in upholding the Contract Clause during the Civil War and Reconstruction, but notes that the provision gradually declined in significance after 1880.
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public employees and the curious mini revival of Contract Clause jurisprudence
Social Science Research Network, 2013Co-Authors: James W ElyAbstract:This article examines the role of the often-overlooked Contract Clause in the context of the current financial crisis experienced by many states and localities. In the face of severe budget shortfalls, state and local governments have sought to modify public employee contacts, especially with respect to health and pension benefits. Federal and state courts have reached confliction opinions concerning legislation that curtails existing Contractual rights for such employees. The article criticizes the prevailing multi-prong test for determining Contract Clause violations as vague and malleable. It also calls into question the notion that courts should employ a heightened standard of review when states alter their own Contractual undertakings. Further, the article proposes a return to a principled reading of the Contract Clause, arguing that financial problems are not a excuse to avoid Contractual obligations of any sort, and that all Contracts, public as well as private, should be held to the same standard of review. It maintains that public employees should not be singled out for harsh treatment in economically distressed times, but that neither should they be treated as a privileged class.
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whatever happened to the Contract Clause
Social Science Research Network, 2009Co-Authors: James W ElyAbstract:This paper examines the decline of the Contract Clause in constitutional jurisprudence. Although the Contract Clause occupied a key and much-litigated place in constitutional law during the nineteenth century, the Supreme Court never read the Clause with literal exactness. Over time the Court began to limit the reach of the Contract Clause in a number of ways. It early distinguished between Contractual rights and the remedy available to enforce such rights. States retained some room to modify enforcement procedures. Thereafter the Court insisted upon strictly construing legislative grants and recognized an inalienable police power to protect the health, safety, and morals of the public. Moreover, the Supreme Court upheld rent control laws and mortgage moratorium measures as valid legislative responses to emergency conditions which trumpted Contracts between individuals. In short, the Supreme Court recognized so many exceptions to the Contract Clause as to virtually read it out of the Constitution. The advent of New Deal constitutionalism in the late 1930s, which downplayed economic rights and affirmed broad regulatory authority, completed the effective destruction of the Contract Clause. Despite some fleeting interest in revitalizing the Clause, and a few decisions enforcing Contract Clauses in state constitutions, this once-powerful provision remains at the fringe of modern constitutional law. The paper contends that the decline of the Contract Clause likely reflects a diminished faith in Contractual bargaining and competitive markets.
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origins and development of the Contract Clause
Social Science Research Network, 2005Co-Authors: James W ElyAbstract:This essay examines the origins and early construction of the Contract Clause of the Constitution. It points out that the Contract Clause must be understood in the context of the troubled economic circumstances of post-Revolutionary America. The Clause, which was little debated at the Philadelphia convention, can be traced to language in the Northwest Ordinance of 1787. This paper focuses on the contested issue of whether the framers intended the Clause to cover only Contracts between private parties or to extend to public Contracts between states and individuals. As asserted by the Progressive historians, it has long been the dominant position among scholars that Chief Justice John Marshall expanded the meaning of the Contract Clause when he ruled that the provision governed private Contracts. This paper disputes that conventional wisdom and argues that the Clause could fairly be construed to safeguard both public and private Contracts from state abridgement. It gives attention to discussion at the state ratifying conventions as well as to the views of prominent members of the constitutional convention. The paper also considers pre-Marshall court cases that examined the meaning of the Contract Clause and the famous 1796 opinion letter by Alexander Hamilton. Although recognizing that it is difficult to establish a collective state of mind concerning the scope of the ban against Contractual impairments, the paper concludes that there was ample support for the views later endorsed by the Marshall Court concerning the reach of this provision.
Leigh T Anenson - One of the best experts on this subject based on the ideXlab platform.
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the legal and ethical implications of public pension reform analyzing the new constitutional cases
Social Science Research Network, 2021Co-Authors: Leigh T Anenson, Jennifer GershbergAbstract:In this thought-provoking and well-researched article, the authors take up the public pension crisis as a case study in the legal and ethical responsibilities of government. Examining six years of litigation, they initially demonstrate—contrary to conventional wisdom—why the Contract Clause fails to provide a meaningful barrier to pension reform. The appraisal then offers a path forward: an ethical framework to be used by policymakers so that decisions are both morally right and politically defensible. The study's contribution to the literature lies in its interwoven discussion of landmark constitutional litigation and contemporary ethical theories applied in the government pension reform context. This interdisciplinary analysis is a first step toward re-thinking how state and local governments can (and should) be legally and morally accountable in this era of austerity.
-
clashing canons and the Contract Clause
University of Michigan Journal of Law Reform, 2021Co-Authors: Leigh T Anenson, Jennifer GershbergAbstract:This Article is the first in-depth examination of substantive canons that judges use to interpret public pension legislation under the Contract Clause of the state and federal constitutions. The resolution of constitutional controversies concerning pension reform will have a profound influence on government employment. The assessment begins with a general discussion of these interpretive techniques before turning to their operation in public pension litigation. It concentrates on three clashing canons: the remedial (purpose) canon, the “no Contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. For these three canons routinely employed in pension law, there has been remarkably little research on their history, evolution, or impact. This study spotlights the methodology that underlies these diverse and complicated judgments. Illuminating actual judicial practices lets us better comprehend when, how, and why these canons function. It puts us in a position to choose the most appropriate canon(s) and to otherwise offer improvements on their operation. It also allows us to relate the role of canons to other kinds of legal reasoning. Significantly, studying these canons fills a void in state statutory interpretation as well as contributes to a better understanding of state court enforcement of the Contract Clause that has received scarcely any attention.
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constitutional limits on public pension reform new directions in law and legal reasoning
Social Science Research Network, 2020Co-Authors: Leigh T Anenson, Linda L Barkacs, Jennifer GershbergAbstract:Catastrophe cements a reputation, and the public pension crisis has been rapid and remarkable. Faced with alarming actuarial deficits, state and local legislatures are enacting comprehensive reforms to avoid insolvency. Government employees, however, are challenging these reforms under the Contract Clause. This Article collects the most important constitutional cases on public pension reform over the last six years. It adds a comprehensive study of recent state and federal court practice to the existing literature, including key U.S. Supreme Court decisions that have been missed. It takes stock of forty-eight decisions across twenty-two states, more than a dozen of which reached resolution in the highest courts. It offers a critical examination of key developments, an assessment of emerging challenges, and a new sustained account of the reforms that have succeeded and the grounds for that success. It also provides an appendix and various diagrams documenting our analysis and conclusions. The most surprising findings are that an overwhelming majority of barriers to pension reform are judge-made, meaning that changing case outcomes would not require a constitutional amendment. And that, in any event, reforms have generally been upheld even in those states in which existing doctrine is more protective of employee pensions. These results have practical implications by suggesting that governments can expand the scope of reforms. Clarifying the reasons and reasoning underlying these decisions also has jurisprudential significance. Courts in a number of jurisdictions have yet to rule on constitutional Contract claims and, in those that have ruled, the decisional law is in flux and bordering on incoherence.
Linda L Barkacs - One of the best experts on this subject based on the ideXlab platform.
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constitutional limits on public pension reform new directions in law and legal reasoning
Social Science Research Network, 2020Co-Authors: Leigh T Anenson, Linda L Barkacs, Jennifer GershbergAbstract:Catastrophe cements a reputation, and the public pension crisis has been rapid and remarkable. Faced with alarming actuarial deficits, state and local legislatures are enacting comprehensive reforms to avoid insolvency. Government employees, however, are challenging these reforms under the Contract Clause. This Article collects the most important constitutional cases on public pension reform over the last six years. It adds a comprehensive study of recent state and federal court practice to the existing literature, including key U.S. Supreme Court decisions that have been missed. It takes stock of forty-eight decisions across twenty-two states, more than a dozen of which reached resolution in the highest courts. It offers a critical examination of key developments, an assessment of emerging challenges, and a new sustained account of the reforms that have succeeded and the grounds for that success. It also provides an appendix and various diagrams documenting our analysis and conclusions. The most surprising findings are that an overwhelming majority of barriers to pension reform are judge-made, meaning that changing case outcomes would not require a constitutional amendment. And that, in any event, reforms have generally been upheld even in those states in which existing doctrine is more protective of employee pensions. These results have practical implications by suggesting that governments can expand the scope of reforms. Clarifying the reasons and reasoning underlying these decisions also has jurisprudential significance. Courts in a number of jurisdictions have yet to rule on constitutional Contract claims and, in those that have ruled, the decisional law is in flux and bordering on incoherence.
Samuel R Olken - One of the best experts on this subject based on the ideXlab platform.
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charles evans hughes and the blaisdell decision a historical study of Contract Clause jurisprudence
Social Science Research Network, 1993Co-Authors: Samuel R OlkenAbstract:In 1934, in the midst of the Depression, the United States Supreme Court, in Home Building & Loan Ass’n v. Blaisdell, upheld the constitutionality of the Minnesota Mortgage Moratorium Act. The Court’s 5-4 decision marked a significant step in the Court’s transformation of its jurisprudence of economic liberty, as a bare majority of the Court, led by Chief Justice Charles Evans Hughes, flexibly interpreted the Contract Clause prohibition of the impairment of Contractual obligations to allow a state to modify a mortgage agreement. In so doing, the divided Hughes Court signaled a willingness to adapt the Constitution to changing economic circumstances. Although it would be three more years before a majority of the Court consistently adapted living constitutionalism in support of the laboratories of democracy and the power of government – both state and federal- to regulate private economic affairs in the public interest, Chief Justice Hughes’s Blaisdell opinion was an integral step in the constitutional revolution of the 1930s.This article analyzes the Blaisdell decision from the duel historical perspectives of the nineteenth and early twentieth century Contract Clause jurisprudence and the pragmatic federalism of Charles Evans Hughes. It explains that the Court’s decision to reconcile the Contract Clause prohibition of state laws that impaired Contract obligations with the reasonable exercise of state police powers reflected a long line of cases that constrained the scope of the constitutional limitation through the prism of federalism. From this perspective, Chief Justice Hughes crafted a fairly modest opinion that nudged the Court along the path of living constitutionalism yet also heeded Court precedent that recognized the authority of states to modify Contract remedies in ways that left intact underlying Contract obligations. The article also examines the extent to which Hughes’s judicial statesmanship allowed for significant contributions by Justices Stone and Cardozo in the creation of an important opinion in the evolution of federalism and Supreme Court judicial review.