Harvard’s Feldman: ‘Disastrous move’ to toss RI pension lawDecember 6th, 2012 at 10:55 am by Ted Nesi under Nesi's Notes, On the Main Site
The prominent Harvard Law School professor Noah Feldman is weighing in on the side of Treasurer Gina Raimondo and super-lawyer David Boies, urging Superior Court Judge Sarah Taft-Carter to uphold the constitutionality of last year’s landmark pension law.
“The Rhode Island courts should respect the law, restrain themselves, and make sure that their state continues to be seen as a leader in fiscal reform, not in judicial backlash,” Feldman wrote Thursday in a Bloomberg View column. It’s the second major national press the pension suit has gotten this week following Wednesday’s front-page New York Times story.
Feldman and Raimondo have nearly identical academic pedigrees: Harvard College, Rhodes Scholars at Oxford University, and Yale Law School. Raimondo’s office confirms the pair know each other from school, though Feldman was a year ahead of her.
Feldman’s legal reasoning, though, doesn’t rest on personal friendship. Instead he argues that Raimondo and her allies are correct that the state can cut pensions legally to serve the broader public interest:
Striking down reform would be a disastrous move — not only for budgets but also for constitutional governance itself. …
[T]he equation of benefits with inviolable contractual rights is too hasty, both legally and morally. As a legal matter, many public-pension plans are in fact created by statute, and it is well established that what a legislature may do by law, it may also undo. …
Even when benefits are created by contract, the states’ obligation to respect those contracts has long been interpreted to allow for them to be altered or even eliminated when public necessity demands it and the modification is deemed reasonable. The looming fiscal crisis in Rhode Island – and in many other states and cities – certainly satisfies the condition of necessity. …
In a pinch, the government may curtail some property rights to preserve the health of the whole system. No one ever likes it – and everyone, regardless of political preferences, makes the same conservative property argument against it.
Read Feldman’s full op-ed here. And speaking of pension arguments, to get a sense of what sort of deal the unions might try to drive in negotiations, read NEARI chief Bob Walsh’s comments from last year.