Law Commons^™

Public Contracts, Private Contracts, And The Transformation Of The Constitutional Order, Thomas W. Merrill

Faculty Scholarship

Modern interpretation of the Contract Clause of article 1, section 10 has created a dual standard of judicial review that bottoms upon the classification of a particular contract as public or private. However, which particular category has received greater deference has changed depending upon the precedential climate. Within his Article, Professor Merrill outlines three modern justifications for affording greater protection to public obligations “Kantian theory,” “process theory,” and “utilitarian theory.” He argues, however, that none of these theories adequately justify the dual standard of review, and concludes that a unitary analysis of the contract clause that affords no presumptions in …