The first chapter presents the central puzzle in the emerging jurisprudence about government pension benefits that this book seeks to solve. It explains how public sector pensions face persistent demographic upheaval and financial fragility amid a turbulent political context. With limited choices in how to shore up failing pension plans, state and local governments have been enacting legislation to trim pension benefits. Current and former government employees have challenged such reforms in state and federal courts across the United States. Focusing on the extent that pension benefits are contractual obligations protected under state and U.S. Contract Clauses as well as state Pension Clauses, this book furnishes a timely analytical lens for comprehending these contemporary constitutional controversies.

The fourth chapter provides an examination of substantive canons that judges use to interpret government pension legislation under the Contract Clause. It concentrates on three clashing canons routinely employed in pension law: the remedial (purpose) canon, the “no contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. Courts are at a crossroads in selecting among these dueling canons to determine public pension contractual obligations. This canon warfare is often outcome-determinative, insofar as it normally answers the question of whether there is a contract. Capturing conflicting interpretative strategies allows for an in-depth exploration of the policies in pension reform litigation and develops a better appreciation of the responsibilities of courts, legislatures, and society. The investigation also fosters an informed dialogue over the choice of canons and the circumstances of their operation in the ongoing legal battles about restructuring pension obligations.

The third chapter details the development of Contract Clause doctrine throughout the United States. It surveys ten years of litigation in state and federal courts, organizing the decisions by the type of reform and their resolution. Challenged reform measures include increasing employee contribution rates, reducing or freezing cost of living allowances, eliminating pension spiking, changing benefit formulas and actuarial factors, redefining the earnable compensation criterion, imposing partial forfeiture of benefits upon conviction, and reducing or eliminating health care benefits. Adding an inclusive account of current court practice to the existing literature, the analysis tests the boundaries of government power to modify pension plans within multiple legal systems. Tracking cases across jurisdictions affords a unique window into contract principles and their application. Judicial lawmaking is not orderly. Decisional rules often lack the philosophical foundation necessary to achieve their purposes or accommodate existing social objectives. The relevant authorities are set out in an accessible way that makes sense of a rapidly developing area of law. Moreover, because most cases turn on the creation of a contractual obligation—an issue that is judicially determined—it provides context for an intensive evidentiary exploration of the contract criterion in subsequent chapters.

The sixth chapter explores changing contract coverage. Decisions determining the validity of public pension reforms under state and U.S. Contract Clauses depend on the contract condition. Over time, it might be expected that repeat resolutions would yield clarity and consistency on one or more contractual issues. But judicial opinions have proven far from predictable. The uncertainty is no doubt complicated by the fact that determinations about contracts cut across state courts and state laws. To help unify the field, this chapter maps pension contract along various criteria and uses California’s influential and controversial government pension law as a framework to evaluate conflicting approaches.

The eighth chapter concludes that synthesizing recent judicial opinions spanning the United States promotes public pension reform. A qualitative inquiry provides a fresh vantage point to guide policymakers and better enable informed decisions in the ongoing debate over retirement. Streamlining a complex array of constitutional contract issues in the context of pension reform litigation also supports legal practice by widening the perspective of judges, as well as the lawyers who argue before them. It similarly influences the theory of constitutional law protecting public pensions contracts by reflecting on their conceptual structure, doctrinal expression, and normative underpinnings. Ultimately, this book aims to enrich our larger social understanding of what the Contract Clause means, and thereby what retirement security signifies, in an ongoing age of austerity.

The seventh chapter arrives at a unified theory of public pension contracts that is fair to all stakeholders: governments, their employees, and the public. Scholars have concentrated on when a contract exists as central to understanding what changes will survive constitutional contests. Conventional wisdom commands that the earlier a contract is formed, such as upon employment, the less likely modifications can be made. Lawmakers have followed this assumption, leaving pension systems in peril by primarily restricting reforms to new hires. However, courts are stretching the contract concept to move beyond existing case law constraints that set the time of formation. The effect of an enlargement of the contractual commitment is counterintuitive: courts can recognize a pension contract but decide that the reform is not within its terms or, even so, that the terms are changeable. The latter outlook can be conceived as a question of contract duration: career or daily. Specifically, are pension benefits secured by a single career-long contract or a series of contracts earned each day through performance? Judges are only beginning to realize the choice and explain their conclusions. This chapter reframes pension contracts by arguing in favor of periodic agreements—a view it calls “contract minimalism.”

The second chapter analyzes the government pension question and the role of adjusting benefits as an important part of the answer. It charts constitutional constraints to public pension reform under state and U.S. Contract Clauses from unprotected gratuities to protected contracts, highlighting the concept of contract as an essential ingredient to constitutional protection. It cautions, however, that the contract element is in flux given the deluge of decisions challenging benefit reductions and emphasizes key challenges to examining contractual obstacles to public pension reform.

The fifth chapter continues the excavation and evaluation of evidence in the making of a government pension contract by describing the circumstances under which reforms have proven effective against constitutional contention. It probes the power of reservation clauses, the credence of contemporary commentary like employee handbooks, the impact of persuasive authority, and the influence of the Supreme Court of the United States. It identifies which forms of proof have been the most effective and why, along with what matters have been missed. In assessing the evidence for and against the creation of a contract, this chapter prioritizes sources, comments on their respective import, and otherwise argues for courts to undertake an expansive inquiry to determine whether government pension benefits receive contract protection.

The power struggle between debtors and creditors in the 1860s and 1870s signalled a time when face-to-face economic relationships showed signs of strain. Economic life was expanding in more impersonal ways, and debt litigation was increasing as debtors and creditors alike found themselves navigating risk without the long-standing close social ties that once characterised their relationships. Chapter 2 studies legal conflicts and legal codes to understand the risks people took when making contractual agreements and illuminates how they decided to trust each other. It shows debtors attempting to evade their obligations in myriad ways and depicts creditors transmitting their anxieties to the courts through the use of providencias precautorias (precautionary petitions) to sequester goods or people before the initiation of a formal civil suit. Examining legal codes from mediaeval Iberia to nineteenth-century civil law, this chapters shows how jurists, working in a long tradition, attempted to balance the interests of both parties. Although creditors generally prevailed in legal conflicts, the prospects of debtors were on the rise.

Technological disruption leads to discontent in the law, regarding the limited remedies that are available under private law. The source of the problem is a ‘private law’ model that assumes that the function of law is to correct wrongs by compensating individuals who are harmed. So, the model is based on (i) individual claimants and (ii) financial redress. If we copy this private law model into our regulatory regimes for new technologies our governance remedies will fall short. On the one hand, the use of AI can affect in a single act a large number of people. On the other hand, not all offences can be cured through awarding money damages. Therefore, it is necessary to rethink private remedies in the face of AI wrongs to make law effective. To achieve this, the mantra of individual compensation has to be overcome in favor of a social perspective should prevail including the use of non-pecuniary measures to provide effective remedies for AI wrongs.

This chapter examines an entirely new source – collections of bundles of loose receipts, notes, and bills in local record offices – to demonstrate how older forms of oral credit were augmented by the use of informal local forms of paper currency to add liquidity to local transactions. This is linked to the changing legal status of paper bills and notes. It looks at the continuing shortage of silver coins and how the increasing minting of guineas was used to make the circulation of local notes work by providing enough coins to make notes over one pound in value redeemable for cash amounts. This chapter also uses the evidence provided by the extraordinary Chronicles of John Cannon as a sort of micro-history within the argument. This is a 500,000 word set of memoirs, diary entries, and record of his scrivening activities over c.1720–1742. Finally, there is a section on the increasing use of inland bills of exchange and their relation to local notes of hand by examining the diary of the mid-eighteenth century Sussex shopkeeper Thomas Turner. The records of the Royal Mail are used to show just how developed the national bill market was by the early eighteenth century, as the transfer of such paper instruments was a major part of its growing business.

Chapter 9 addresses a selection of contract law issues including licensing and collaboration agreements from a practical point of view. It also engages with competition law, international trade law, and environmental law aspects of beer law. The chapter includes a section devoted to the legal issues that are associated with cross-border internet sales of beer.

Provisions in consumer contracts that deprive consumers of recourse in the event of a product failure effectively cancel the insurance that the law would otherwise provide to consumers who are injured by sellers of consumer products. This redistributes wealth from the poorest consumers to richer consumers because richer consumers can afford to self-insure against the risk of product failure whereas poorer consumers cannot. It follows that consumer sovereigntist arguments that consumer indifference to consumer-unfriendly contract terms suggests that consumers prefer the lower prices that come with such terms are misleading here. The interests of rich and poor consumers diverge with respect to these contract terms and the fact that rich consumers may carry the day in the market does not imply the consumers as a group prefer these terms. Accordingly, the European approach to consumer law, which treats democratically elected governments regulating consumer contract terms as a more authentic reflection of popular will than the purchase decisions of consumers in markets, may be more appropriate when it comes to the regulation of consumer contracts.

This chapter introduces the vision of contract law adopted in this book, based on two concentric spheres: an inner sphere encompasses an economic realm rooted in values such as freedom and sanctity of contract, reflecting a non-interventionist approach that can accommodate imbalanced transactions and an outer sphere shaped by public policy concerns, which embodies social values such as the protection of relational autonomy and human dignity. The chapter justifies the structure of the book, the choice of legal frameworks examined, as well as the relevance of this study for disability equality and contract legal research.