Do Changes in Benefits for Public Employees Violate the Contracts Clause?

Paul Secunda has a new paper on SSRN that considers under what circumstances statutory changes affecting public-employee benefits might violate constitutional restrictions on the impairment of contracts.  Paul particularly focuses on a very timely case study: Wisconsin’s recent budget-repair bill and its impact on city employees in Milwaukee.  Here is the abstract:

The recent spate of high profile efforts by state governors to roll back public employee pension rights in light of recent budgetary challenges has shone the light directly on the importance to public employees of the Contracts Clause provisions of the federal and state constitutions. Using as an example the controversial budget repair bill in Wisconsin and the application of the bill’s pension provisions to Milwaukee City employee pension rights, this article has sought to show how, under certain specified circumstances, such legislative attempts may be constitutionally impermissible if such laws substantially impair employee contracts with the state without the necessary legal justification.

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Marquette Law Review Article Sparks Debate on Use of Dictionaries to Decide Legal Cases

A recent article in the Marquette Law Review was featured in Adam Liptak’s “Sidebar” column for the New York Times earlier this week.  Liptak wrote about the increasingly common citation of dictionaries in Supreme Court opinions:

A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.

Liptak notes various objections to the practice.  For instance, dictionaries were not written for the purpose of supplying precise legal definitions, and the variety of different meanings suggested by the many available dictionaries creates opportunities for “cherry picking.”  He adds,

The authors of the Marquette study, Jeffrey L. Kirchmeier and Samuel A. Thumma, said the justices had never really said precisely what dictionary definitions were doing in legal opinions. They urged the justices to explain “when and how dictionaries should be used, how a specific dictionary should be chosen and how to use a dictionary for interpretation.”

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Local Food Systems and the Reawakening of Republicanism

This post is a summary of a full-length piece that the author is currently working on with Marquette Law School Professor Chad Oldfather.  The ideas expressed in this post represent a work in progress, and portions of the argument are likely to undergo substantial revisions before the final piece is completed.  Notwithstanding the collaboration with Professor Oldfather, any errors in this piece, either substantive or grammatical, are solely the author’s.

Until recently, the Supreme Court’s Dormant Commerce Clause doctrine has been applied to invalidate states’ attempts to implement legislation that discriminates against out-of-state interests, on the theory that Congress’s affirmative powers under the Commerce Clause necessarily imply a limit on states’ abilities to enact laws that would affect interstate commerce.  Recently, the Court has pulled back slightly from its formerly aggressive Dormant Commerce Clause jurisprudence, and there has been a revitalization of federalist principles by which the Court has sought to recognize greater powers in the states to direct local governmental activities.  This recent trend has found specific support in a number of the Court’s jurisprudential developments, including its broad interpretation of the Eleventh Amendment and its attempts at narrowing federal powers under the Commerce Clause.  However, in light of many of the other developments in federal-state relations, a clearer, more textually defensible basis for a reinvigoration of federalist principles may be found in the Republican Guarantee Clause of Article IV.

This theory is based on the idea that, the Constitution’s guarantee of republicanism provides substantive protections of the rights of the people, as well as the states, to enact legislation intended to further legitimate local interests, regardless of the alleged effect on interstate commerce.  Thus, where Congress has not enacted contrary preemptive legislation, the federal courts should refrain from imposing judicial constraints on the peoples’ ability to protect themselves as they elect to do so through the representative process. 

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