William and Mary Law School

 

Public Employees and the Curious Mini-revival of Contract Clause Jurisprudence

 

JAMES W. ELY, JR.

 

For decades the Contract Clause of the federal Constitution, once a muscular vehicle for judicial review of state legislation, has languished in the constitutional backwater. The Supreme Court has not invoked the provision in more than 30 years, although lower federal courts occasionally apply the clause to invalidate state laws. Most state constitutions also contain a contract clause, and some state courts enforce the state provision with more vigor than is the current norm in the federal courts. Since the New Deal era, the Supreme Court has not treated the Contract Clause as a significant barrier to state modification of agreements and rarely hears Contract Clause challenges.

 

(Download PDF)

 

2 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 37 (2013)