The long-simmering harbor dispute between New York and New Jersey has observers reaching for illustrations from “The Sopranos” and “On the Waterfront.” But now that the US Supreme Court has agreed to adjudicate the spat, I wonder whether a more useful resource might be “The Paper Chase.”
The Supreme Court is now involved because that’s the venue the Constitution prescribes when one state sues another. Four days before New Jersey’s announced departure date of March 28, the justices issued an injunction preventing the move. This week they agreed to adjudicate the dispute and set an accelerated schedule for briefs and oral argument.
The case is rich with competing constitutional arguments, but I wonder whether the more straightforward solution is to stop thinking about New Jersey and New York as sovereign states and view them instead as parties to a contract. After all, contract law has long been applied to interpret compacts between states, and both states reference contract law in their Supreme Court filings.
If we consider only contract law, New Jersey would seem to have a strong argument. For one thing, courts dislike deals of indefinite duration. More important, cases over the past century have converged around the notion that even a deal that’s supposed to go on forever can be broken if circumstances have sufficiently changed.
For example, a parcel of land is sold with a covenant that it can only be used to build a residence. Fifty years later, the neighborhood is all businesses. Although the covenant by its terms cannot expire, the court will likely “reform” the deed to allow the owner to construct commercial space.
How does that principle apply here? Let’s go back to the years after World War II. It’s difficult to describe in a short column how grim life had become along the New York and New Jersey waterfront. The port of New York handled one-third of US foreign trade, and organized crime held sufficient sway that ships couldn’t depart until their owners paid off the mobsters who ran the docks. “Men have been murdered,” wrote the Christian Science Monitor in 1948. “Gangsters control the lives and destines of thousands of water-front workers.”
Every day, longshoremen would crowd the docks, hoping for a few hours’ pay. The hiring bosses would pick and choose, often in exchange for a kickback. Part of the kickback went to the Mob. Those who refused to pay couldn’t get work.
Although the hiring bosses at times were themselves victims of Mob violence, those who went along with the scheme wielded enormous and arbitrary power. A 1945 article in The Nation alleged that the bosses pressured longshoremen to make their wives and daughters sexually available in exchange for work.
By most accounts, the International Longshoremen’s Association also profited from the setup, and did all it could to halt investigations. In 1948, the New York Times reported that the union was threatening to pull the entire crew off the job “whenever one of their members was taken from a pier for questioning.” And the shipping companies were hardly untainted. “Organized crime in the unions could not flourish,” wrote the New York Herald Tribune, “without the connivance — or supineness — of employers.”
Meanwhile, public outrage grew. The Waterfront Commission was established amidst high hopes that it would be able to break the power of both organized crime and the corrupt union along the docks. Here’s New York Governor Thomas E. Dewey, speaking in August 1953: “We must substitute law and order for the jungle rule of fear and violence that grips the waterfront.”
Seven decades later, the Mob casts a far smaller shadow than it once did. For years, technology (especially the invention of container shipping) has been killing longshoring jobs across the country. At the Port of New York, the union workforce has declined by nearly 90%. Productivity is up. Pilferage is down. So is the power of the hiring bosses, whose role was crucial to the worst of the dockside corruption that led to creation of the Waterfront Commission. At the same time, the New Jersey waterfront has become a prime development territory, dotted with hotels and apartments and shopping malls.
Are these changes sufficient to release New Jersey from the agreement? New York insists that organized crime still plays a role along the docks. New Jersey responds that the commission is no longer the right solution; that it’s made hiring dockworkers expensive by creating unnecessary bureaucratic layers; and that, per a harsh 2009 report, it’s not exactly a paragon of probity itself.
I won’t venture to guess how the case will come out. But I hope the justices will clarify whether changed circumstances ever allow a state to escape a compact with another state. There are hundreds of interstate deals out there, and not a few of them are ripe for challenge.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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