35 Harv. J. L. & Pub. Pol'y 525 (2012)
Judicial Compulsion and the Public Fisc - A Historical Overview

handle is hein.journals/hjlpp35 and id is 518 raw text is: JUDICIAL COMPULSION AND THE PUBLIC FIsc - A HISTORICAL OVERVIEW KENNETH T. CUCCINELLI, II;* E. DUNCAN GETCHELL, JR.;** WESLEY G. RUSSELL, JR.*** INTRODUCTION On September 13, 2011, the Providence Rhode Island Supe- rior Court denied the State's motion for summary judgment on a claim, brought by a number of public employee unions, as- serting that the statutory pension system establishes a contrac- tual relationship between the State of Rhode Island and par- ticipating employees sufficient to trigger the Contract Clause and the Takings Clause of the state constitution when benefits to vested employees are statutorily reduced.' Undoubtedly this case can be regarded as early thunder from a not-so-distant storm.2 The likelihood of litigation arising from alteration of pension benefits has generated interest at both the federal and state levels.3 In times of fiscal contraction, social welfare bene- fits might be altered in ways that engender litigation.4 Guaran- * Attorney General of Virginia. ** Solicitor General of Virginia. *** Deputy Attorney General of Virginia. The Authors thank the editors for their invitation to write on the theme of law in an age of austerity. 1. R.I. Council 94 v. Carcieri, No. PC 10-2859, 2011 R.I. Super. LEXIS 120, at *1 (R.I. Sup. Ct. Sept. 13, 2011). 2. See id. at *21 (noting that the states of Alaska, Hawaii, Illinois, Louisiana, Michigan, and New York protect pension rights in their constitutions). 3. See, e.g., JENNIFER STAMAN, CONG. RESEARCH SERV., R41736, STATE AND LOCAL PENSION PLANS AND FISCAL DISTRESS: A LEGAL OVERVIEW 1 (2011), available at http://www.nasra.org/resources/CRS /20state /20and%201ocal%201egal%20framew ork %201104.pdf; Stephen C. Fehr, States test whether public pension benefits can be taken away, STATELINE (Aug. 10, 2011), http://www.stateline.org/live/printable/ story?contentld=504503. 4. See, e.g., Butte Cmty. Union v. Lewis, 712 P.2d 1309 (Mont. 1986) (affirming district court's injunction of a house bill that would have restricted the ability of

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