Attorney General's Response To Luke Malek On Minimum Wage

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

LAWRENCE G. WASDEN
May 13, 2015
The Honorable Luke Malek

Idaho State Representative
721 N. 81h St.
Coeur d'Alene, ID 83814
Re: Minimum Wage - Our File No. 15-51356
Dear Representative Malek:
This letter is in response to your recent inquiry as to whether a local mm1mum wage
ordinance would be preempted by state or federal law? More specifically, this office
understands that this question arises out of an interest by citizens to place an initiative on
the ballot to this effect.
Given the regulatory specificity in the state statute, one can infer that the Legislature
intended to occupy the field.
See Idaho Code 44-1504 (specifying excluded
employees); id. 44-1504 (exclusion of certain workers with disabilities); id. 44-1506
(authorizing DOL director to issue apprentice exceptions). Consequently, even though
compliance with a local ordinance requirement might not come into conflict with the
state statute in a paiiicular instance, the careful balancing of the affected interests in Title
44, Chapter 15 suggests that the Legislature intended to regulate comprehensively (and
exclusively). This might be an area in which the Legislature will want to clarify in an
.
.
I
upcommg sess10n.
For a good (and conflicting) analysis of the issue, take a look at Darin M. Dalmat,
Bringing Economic Justice Closer to Home: The Legal Viability of Local Minimum
Wage Laws Under Home Rule, 39 Colum. J.L. & Soc. Probs. 93, 139 (2005) (classifying
Idaho as a "legislative" State for purposes of local law preemption analysis). (Enclosed
for your convenience).
For example, the legislature has clearly stated its intent to occupy the field with regard to firearms
regulation in Idaho Code 18-33021. Adoption of a similar provision in Chapter IS of Title 44 could be
considered by the legislature.
P.O. Box 83720, Boise, Idaho 83720-0010

Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 210
Representative Malek
May 13, 2015
Page 2of2
Since this question arises from a locally proposed initiative, it should be pointed out that
Idaho law strongly discourages pre-election challenges to otherwise validly qualified
initiatives. With regard to initiatives, the Idaho Supreme Court clarifies and directs:
However, the initiative process arises from the Idaho Constitution, Article
III, Section 1, and extends to the cities by legislative mandate. I.C. 50501. It is not an inconvenience created by rabble rousers and malcontents
to vex established authority. The initiative process is a mandate,
significant enough to be embodied in the Idaho Constitution, that enables
voters to address issues of concern. Sometimes it compels authorities to
listen when nothing else will. To the extent the conclusion in this case is
inconsistent with Weldon, Gumprecht and Perrault they are oveffuled.
In this case the initiative may not pass in which case the issue of whether
it steps over the bounds of a proper initiative would be moot. The initiative
may pass and be the proper subject of an adjudication, or the City council
may exercise its authority to amend or reject it. The validity of the action
sought by the petition may or may never be the proper subject for Court
action. Just as the Co mi would not interrupt the legislature in the
consideration of a bill prior to enactment, the Comi will not inten-upt the
consideration of a properly qualified initiative.
City of Boise City v. Keep the Commandments Coalition, 143 Idaho 254, 257, 141 P.3d
1123, 1126 (2006).
This means that the City could be placed in the position of defending the legality of the
ordinance if it were adopted by initiative and the city chose not to repeal it. As reflected
above, the question of preemption is close enough that at this point in time, a plausible
argument could be advanced to defend a local ordinance.
I hope that you find this analysis helpful.
Assistant Chief Deputy

BK/tjn
enclosure
39 CLMJLSP 93
39 Colum. J.L. & Soc. Probs. 93
Page 1
Columbia Journal of Law and Social Problems

Fall 2005
*93 BRINGING ECONOMIC JUSTICE CLOSER TO HOME: THE LEGAL VIABILITY OF LOCAL MINIMUM WAGE
LAWS UNDER HOME RULE
Darin M. Dalmat [FNa1]
Copyright (c) 2005 Columbia Journal of Law and Social Problems, Inc.; Darin M. Dalmat
Economic inequality in America has increased dramatically in the last four decades. A significant portion of this rising inequality can be attributed to the deterioration in the real value of federal and state minimum wage laws. Local governments
throughout the country are beginning to develop home-grown solutions to ensure that workers in their communities can afford
the local costs of living. Yet, the legal authority of local governments to adopt local wage standards is not always clear. This
Note develops a method of analysis for determining whether local wage standards are legally viable. The analysis first examines the scope of regulatory power under home rule provisions across the states. It then examines the preemption regimes across
the states. After assessing the relevance of the economics of wage standards and of the private law exception to legislative home
rule powers, this Note concludes that local governments in approximately three-quarters of the states have a fairly strong legal
basis for enacting local wage standards.
*94 I. INTRODUCTION
Economic inequality in America has increased dramatically since the 1970s. Over the same period, the real value of the
federal minimum wage has crumbled continuously, leaving minimum wage earners with incomes that increasingly fall below
the federal poverty line. [FN1] Even in the fifteen states that have adopted minimum wages higher than the federal minimum of
$5.15 per hour, [FN2] too many people working full time at minimum wage jobs cannot cover the costs of living. Of course, the
costs of living within a state often vary dramatically: housing in Atlanta costs nearly double what it does in Dahlonega, Georgia,
[FN3] just as housing in New York City commands nearly double the price of housing in Binghamton, New York. [FN4] To
make minimum wages adequate for local costs of living, many cities have taken it upon themselves to regulate wages at the
local level. Most of these local wage regulations, termed living wage laws, [FN5] cover only employers who have contracts
with the city or receive grants from the city. A handful of cities, however, are beginning to see these living wage laws as too
restricted in their coverage, opting instead to apply local minimum wage regulations to all businesses within the city's jurisdiction. While these local minimum wage *95 regulations seem to be a fully natural response to the inadequacy of state and
federal minimum wages, municipal power may prove more limited than state power to enact this sort of regulation.
This Note analyzes the ability of municipalities, under home rule powers, to enact local minimum wage regulations and to
avoid preemption by state wage regulation. This analysis involves two inquiries. First, given the particular delegation of power
2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
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by a state to its local governments, does a municipality enjoy sufficient authority to regulate wages? Second, if the state regulates minimum wages, [FN6] does the state regulation conflict with the municipal regulation in a way that preempts local
regulation? To frame this discussion, Part II discusses the history of minimum wage regulation, highlighting the roles of innovation at the state and local levels of government. Part III analyzes the varieties of municipal home rule powers and
preemption regimes, focusing in particular on their implications for minimum wage regulation. Part IV assesses the legal
viability of local minimum wage regulations in light of the different home rule and preemption regimes, with particular attention to economic arguments. Part V concludes, finding that local minimum wage regulation is strongly viable in approximately
half of the states, probably impossible in about a quarter of the states, and indeterminate in the remaining quarter. The Note ends
with an Appendix summarizing the relevant legal regime of each state, giving advocates a platform for analysis. [FN7]
II. THE ROLE OF LOCAL INITIATIVE AND BACKSTOPPING IN THE HISTORY OF MINIMUM WAGE REGULATION
The twentieth century frames the history of the minimum wage, highlighting the role of state and local policy innovation.
At the opening of the century, employers and workers bargained *96 for wages without any government regulation of the
process. By 1919, over a dozen states regulated minimum wages. After judicial intervention and constitutional crisis, the
middle of the century saw the federal government assert dominance in protecting workers' wages. The federal government
abandoned this role in the final decades of the twentieth century, however, leaving states and local governments with the burden
of filling the gaps and restoring crumbling wage standards.
A. LOCAL INNOVATION, PART I: EARLY STATE REGULATION
Before the U.S. Supreme Court found minimum wage laws to be unconstitutional in 1923, [FN8] fourteen states, as well as
the District of Columbia and Puerto Rico, had enacted minimum wage statutes. [FN9] These regulations fared well in early
litigation. [FN10] But in Adkins v. Children's Hospital, the U.S. Supreme Court held that D.C.'s minimum wage law violated
the Fifth Amendment's protection against deprivations of property without due process because it interfered with that provision's guarantee of liberty of contract. [FN11] After 1924, many state minimum wage regulations fell under the authority of
Adkins, [FN12] although some courts distinguished Adkins in order to uphold minimum wages for children *97 who truly
needed paternalistic protection. [FN13] Following a decade of economic depression, political crisis, and jurisprudential revolution, [FN14] the Court finally reversed itself in West Coast Hotel Co. v. Parrish, [FN15] recognizing wage regulation as a
valid exercise of the states' police powers. As Professor Cushman has noted, West Coast Hotel formally announc(ed) the last
breath of a moribund body of jurisprudence. [FN16] Since 1937, the Court has never again held that regulation of minimum
wages violates the Constitution. [FN17] State policy innovation in labor market interventions not only provided relief to
women and children suffering from starvation wages, but also helped ring the death knell of a constricting strand of jurisprudence, thereby opening constitutional space for broadly based federal intervention.
B. FEDERAL LEADERSHIP AND ITS DEMISE
Congress wasted no time in making use of its newly recognized powers, passing the Fair Labor Standards Act (FLSA) in
1938. [FN18] FLSA has three main components: it prohibits covered employers from paying workers less than the statutory
minimum wage, it requires covered employers to pay time-and-a-half for overtime hours worked above the statutory maximum,
and it prohibits child labor. [FN19] The minimum wage is currently set by statute at $5.15 per hour for covered employees.
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[FN20] It rose to this *98 level after starting at $0.25 per hour in 1938, with phased-in increases in 1939 and 1945. Congress has
since amended the statute eight times to raise the minimum wage, usually in phases, with the most recent amendment occurring
nearly a decade ago, in 1996. [FN21] Moreover, two amendments significantly expanded the domain of workers FLSA covers.
[FN22] In 1989, under the first Bush administration, Congress added the training wage provision--the final major structural
change. The training wage allows employers to pay workers under twenty years old a special minimum wage that is less than
the generally applicable minimum. [FN23]
Congress acted fairly dependably between the first FLSA amendments, in 1949, and the amendments of 1977 to increase
the minimum wage whenever, due to inflation, it fell below the federal poverty line for a family of three. [FN24] However, in
1982, the minimum wage dropped to 90% of the poverty line for the first time since 1960. [FN25] Rather than acting to correct
the crumbling value of the minimum wage, Congress allowed it to continue to fall throughout Reagan's administration until it
reached 70% of the poverty line in 1989. [FN26] While the statutory increases in 1989, 1991, 1996, and 1997 helped slow this
precipitous fall, they have failed to boost the federal minimum up to the current poverty threshold for a family of three. In short,
a worker earning minimum wages for full-time employment throughout the year lives in poverty if supporting two others;
indeed, even if that worker supports only himself, he earns just below poverty wages. [FN27]
*99 Although the federal minimum wage provided sufficient safeguards throughout most of FLSA's history to protect
workers from starvation-level wages, since the 1980s the statutory provisions have proved inadequate to this task. Not surprisingly, during the period when the federal minimum tracked the poverty line fairly closely, states that regulated minimum
wages at all tended simply to adopt the federal minimum. [FN28] Until 1979, only Alaska's minimum wage exceeded the
federal minimum. [FN29] Today, however, fifteen states and the District of Columbia demand minimums above the federal
floor. [FN30]
C. LOCAL INNOVATION, PART II: MUNICIPAL RESPONSES
Despite the initiative many states showed in backstopping the crumbling federal minimum wage, state regulation has
proven inadequate for many communities, both in states with minimum wages above the federal level and in those with
minimums at or below the federal level. Since 1994, over 120 communities (municipalities and counties) have chosen to demand more of their employers than do the state and federal minimums. [FN31] There are two main reasons for doing so: a
municipality may want to restore the real value of the minimum wage to the poverty-line level, or it may want to tackle a
particularly high local cost of living.
The vast majority of municipal wage regulations are so-called living wage laws. Rather than covering all employers
within the geographical boundaries of the local government, living wage laws regulate only those businesses, and often their
subcontractors, that receive government contracts or subsidies, or that operate*100 on public land. [FN32] A handful of local
governments, however, have enacted minimum wage regulations that apply generally to all businesses within the municipal
boundaries, exempting only small businesses and (sometimes) nonprofit organizations. [FN33] These municipalities include
San Francisco, California; [FN34] Berkeley, California; [FN35] New Orleans, Louisiana; [FN36] Santa Fe, New Mexico;
[FN37] Washington, D.C.; [FN38] and Madison, Wisconsin. [FN39] Some of these ordinances include provisions that automatically tie the minimum wage to an index that tracks inflation, such as the Consumer Price Index (CPI), to ensure that the
wages of the working poor are not subject to the political shifts of legislatures. [FN40]
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Thus, the history of minimum wage regulation has come full circle. States led the charge early in the twentieth century. The
*101 federal government protected workers across the country during the middle of the century, but abandoned this role as the
century reached its closing decades. Today, at the beginning of the twenty-first century, progressive economic reform must
come from states and local governments. While the only obstacle preventing the federal government and the states from restoring wage protections is a lack of political will, local governments often face the additional burden of demonstrating that
they enjoy sufficient authority to enact these regulations, and that such regulations are not preempted by state law. [FN41] The
remainder of this Note assesses the legal standing of these ordinances.
III. THE VARIETIES OF HOME RULE AND PREEMPTION REGIMES
Unlike states, local governments do not have inherent sovereign powers. [FN42] Rather, whatever powers local governments [FN43] may have, they have by virtue of delegations of power by the state, either by constitution, statute, or common
law. [FN44] Because each state confers its own delegation of power to local governments, there is no generally applicable
answer as to whether local governments have the legal authority to adopt minimum wage ordinances. Rather, the viability of
such ordinances depends on a number of factors, including (a) the nature and extent of the delegation of power by the state to
the municipalities, (b) the factors that allow state law to preempt local law, and (c) the actual relationship between the municipal
ordinance and any state legislation in the same field of regulation. Municipal powers take one of three main forms: the traditional range of powers under Dillon's *102 Rule, local regulatory powers under an imperio in imperium (i.e., government
within a government) regime, and broad legislative powers under a legislative regime. [FN45] Each of these forms of municipal
power involves different relationships to state law and policy, resulting in different degrees of viability for local ordinances.
A. MUNICIPAL POWERS UNDER DILLON'S RULE
Until 1875, when Missouri amended its constitution to create the first home rule regime in America, most local governments were subject to the common law rule, expressed succinctly by Judge Dillon: [FN46]
A municipal corporation possesses and can exercise only the following powers: (1) those granted in express words;
(2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the accomplishment of the declared objects and purposes of the corporation--not simply convenient, but indispensable. Any fair,
reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the
power is denied. [FN47]
Mississippi still operates entirely under this regime, and a few other states incorporate aspects of this regime into their
delegation of municipal powers. [FN48] Under this rule, a state must specifically enumerate a grant of municipal power in order
for a local government to be able to enact an ordinance exercising it. Courts interpret such grants narrowly, presuming that a
municipality *103 lacks the power to regulate in a particular field unless a state statute explicitly provides to the contrary.
[FN49]
This policy of limiting municipal powers reflects a distrust of local governments. Indeed, the jurisdictions that employ
Dillon's Rule have often viewed it as the only possible alternative by which extensive governmental powers may be conferred
upon (their) municipalities, with a measurable limit upon their abuse. [FN50] Under these regimes, a municipality can regulate
wages only if a state statute explicitly grants specific municipal authority over wage regulation. California is the only state in
the union that explicitly gives statutory authority to local governments over minimum wage regulation, [FN51] and it has
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rejected Dillon's Rule. Therefore, no municipality in a state with Dillon's Rule will likely be able to enact local minimum wage
regulations, for want of municipal power. [FN52]
B. THE DEVELOPMENT AND FORMS OF HOME RULE POWERS
The stranglehold on municipal power under Dillon's Rule frustrated many citizens' aspirations for stronger local
selfgovernance and more direct democracy. Advocates of the home rule movement agree with Tocqueville's recognition that
the strength of free peoples resides in the local community (because) (l)ocal institutions are to liberty what primary schools are
to science; they put it within the people's reach; they teach people to appreciate its peaceful enjoyment and accustom them to
make use of it. [FN53] Seeking to improve grassroots participation in government, harness local knowledge in solving local
problems, and *104 accommodate a statewide diversity of policy preferences by allowing local variation, [FN54] the vast
majority of states, beginning with Missouri in 1875, [FN55] have adopted home rule, typically following either the imperio
or the legislative model.
1. The Imperio Model
Until the American Municipal Association proposed model constitutional provisions for home rule powers in the 1950s,
[FN56] most states with home rule powers adopted the so-called imperio in imperium (government within a government)
regime. [FN57] While, in theory, states could adopt imperio home rule through statutory enactment, most chose to amend their
constitutions in order to avoid a narrow judicial construction of the newly devolved municipal powers. California's constitutional delegation provides a typical example of imperio powers. In California, home rule cities can make and enforce all
ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several
charters and in respect to other matters they shall be subject to general laws. [FN58]
The idea behind the imperio model is to render to the state what properly belongs to the state, and to render to local governments what properly belongs to local governments. In so doing, the imperio model balances two powers. First, it restricts a
local government's power to initiate legislation to those subjects that are municipal in nature. [FN59] Simultaneously, it gives
ordinances that regulate purely local affairs immunity from state preemption. [FN60]
*105 While the imperio model, taken abstractly, seems to strike the right balance between state and local power, many
jurisdictions have found it difficult to implement because the provisions rarely provide precise definitions of the range of
municipal or local affairs. [FN61] Without a clear guide as to which subjects are properly of statewide concern and which
are more local in nature, the courts bear the heavy burden of fleshing out that distinction in common law fashion. Moreover, for
many regulatory fields, especially uncharted ones, it is difficult to predict whether a court will characterize the regulation as
primarily of state or local concern. This unpredictability causes municipalities to remain uncertain of the scope of their powers
and hesitant to innovate with new policies. In short, the imperio model has partially undermined its own goals insofar as municipalities can practice only limited selfgovernance when they are uncertain of the scope of their powers over many fields of
regulation. [FN62] Despite these difficulties, about a quarter of the states continue to use the imperio model of home rule
powers, or a close variant thereof. [FN63]
2. The Legislative Model
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The majority of states seeking home rule powers have rejected the imperio model. By far, the most popular alternative has
been the legislative model proposed by the American Municipal Association (AMA) in 1953 and drafted by Jefferson
Fordham. [FN64] This model devolves a broad range of powers to municipalities; it *106 gets the name legislative because
local governments in this model have regulatory powers nearly as broad as the state legislature. New Mexico's home rule
provisions provide a typical example:
A municipality which adopts a (home rule) charter may exercise all legislative powers and perform all functions not
expressly denied by general law or charter. This grant of powers shall not include the power to enact private or civil laws
governing civil relationships except as incident to the exercise of an independent municipal power, nor shall it include
the power to provide for a penalty greater than the penalty provided for a petty misdemeanor . . . . The purpose of this
section is to provide for maximum local self-government. A liberal construction shall be given to the powers of municipalities. [FN65]
About thirty states follow this legislative model of home rule powers, or some variant thereof. [FN66] Recognizing the
difficulties of the imperio model's state/local distinction, the legislative model rejects the assumption that governmental
powers and functions are inherently of either general or local concern . . . since (t)imes change and what may at one time be
considered a clearly local problem may be as readily labeled a state concern at a later juncture. [FN67] Instead, the legislative
model grants municipalities the entire range of state regulatory power, withholding only those powers and functions expressly
denied by general law or charter. [FN68] Thus, this model carries a strong presumption that a municipality has the power to
enact any ordinance, subject to normal constitutional limits on state legislative power. Reversing the presumption in Dillon's
Rule, the municipality will lack the authority to exercise the power in question only if a court finds a specific denial of that
power in the municipal charter, or in state or federal law.
*107 C. STATE PREEMPTION OF LOCAL LEGISLATION
While the imperio and legislative models of home rule determine the scope of a local government's power to enact regulation, local regulation must additionally avoid preemption by state law in order to be legally viable. A state statute preempts a
local ordinance when the two come into conflict and the statute is legally entitled to preclude the operation of the local ordinance in that particular kind of conflict. [FN69] States typically recognize one or more of the three main grounds for preemption: express denial, direct conflict, and implied preemption. [FN70]
Preemption by express denial occurs when the state statute specifically and expressly denies municipalities the power to act
in a certain field of regulation. Louisiana, for example, provides that no local government subdivision shall establish a
minimum wage rate which a private employer would be required to pay employees. [FN71] When a state legislature in a
legislative home rule state does expressly deny localities the power to act in a field, the state denial of local power is conclusive
and successfully preempts the local ordinance, unless that prohibition itself is somehow unconstitutional.
Direct conflict, on the other hand, occurs when it would be impossible to comply simultaneously with both the state and the
local law. Direct conflict can be textual (e.g., if a state statute imposes a speed limit of 65 miles per hour while a local ordinance
allows its residents to drive at 75 miles per hour) or operational (e.g., if a local licensing regime interferes with the operation of
a state licensing regime [FN72]). Courts will typically find direct conflict when the ordinance prohibits behavior affirmatively
permitted by *108 the statute, or when the ordinance permits behavior prohibited by the statute. [FN73] In order to preserve
home rule, many states apply this test narrowly, finding conflict only when the statute and ordinance irreconcilably conflict.
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[FN74] For instance, many courts do not find conflict between an ordinance and a statute when the ordinance pursues the same
policies as the statute but demands higher standards, as many statutory standards impose merely a floor rather than a ceiling.
[FN75]
Conflict alone does not completely settle the question of preemption. A court must additionally determine which regulation--state or local--survives the conflict. In a legislative home rule regime, the state statute will always be superior to the local
ordinance in cases of conflict. [FN76] In an imperio regime, however, state statutes are supreme in areas of statewide concern
whereas local ordinances are supreme in areas of local concern. [FN77] Courts in imperio regimes typically use three overlapping tests to determine whether a matter is of state, local, or mixed state-and-local concern. First, courts look to a need for
statewide uniformity in the particular field of regulation; second, courts examine the extent of external effects from local regulations; and, third, courts determine whether regulation of the particular field has traditionally occurred at the state or local
level. [FN78] As discussed in Part III.B.1, supra, the judicial determination that a certain field of regulation is predominantly a
matter of state, local, or mixed concern can be unpredictable, even when courts apply these three tests. In close cases, the policy
of self-governance underlying home rule implies that advocates of statewide concern should have the burden to persuade the
court that the matter at bar *109 truly does require statewide uniformity. Otherwise, local selfgovernment will yield too easily
to statewide control in the face of preemption by direct conflict. [FN79]
Finally, some states allow statutes to preempt local ordinances impliedly through occupation of the field. Courts typically
look to legislative intent to determine whether a particular statute or set of statutes regulates a field so comprehensively, exclusively, and thoroughly that the legislature must have meant the state to exhaust all regulation of that field, thereby
preempting local governments from regulating the field any further. [FN80] Because lenient requirements for finding
preemption by occupation of the field could easily vitiate home rule, courts often require more than the mere existence of a
state law, or even a multitude of state laws on a subject, to demonstrate legislative intent to occupy a field. [FN81] Rather, they
require a more searching inquiry of legislative purposes, how the statutory scheme advances those purposes, and whether local
regulations would undermine those purposes. [FN82] A few states have gone further and rejected preemption by occupation of
the field entirely, finding it to be inconsistent with the policies behind home rule. [FN83]
These different forms of preemption by express denial, direct conflict, or implied preemption through occupation of the
field do map onto the imperio and legislative home rule regimes, if imperfectly. Both imperio and legislative states could
expressly deny local governments regulatory power in a given field, but the two *110 regimes treat occupation of the field very
differently. Because the grant of municipal power in a legislative home rule state is limited to matters not expressly denied by
general (state) law or charter, an express denial in a legislative home rule state completely preempts local ordinances in that
field. [FN84] In an imperio state, however, municipalities have immunity from state regulation in areas of local concern;
therefore, even an express denial of municipal power may not effectively preempt a local ordinance if a court finds it to govern
an area of exclusive local concern. [FN85]
Both legislative and imperio states are likely to recognize preemption by direct conflict: no court can countenance irreconcilable conflict between statutes and ordinances, whether textual or operational. [FN86] While states uniformly recognize
preemption by irreconcilable conflict, they differ in their understandings of when demanding local regulations merely set
higher standards than state law and when they become unacceptably inconsistent with it. [FN87] The interpretation of statutory
standards as floors, which allow higher local standards, rather than ceilings, which do not, depends primarily on a court's
general willingness to defend home rule, not on whether it finds itself in an imperio or legislative home rule state. [FN88] The
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main difference, then, between preemption by direct conflict in legislative and imperio home rule regimes is that once a court
finds a direct conflict in a legislative regime, it can immediately conclude that the state statute preempts the local ordinance. In
such a case, the court will normally reason that the direct conflict, if irreconcilable, requires an interpretation of the statutory
language as tantamount or equivalent *111 to an express denial of local power in a field. [FN89] In an imperio state, however,
after finding a conflict between a statute and an ordinance, the court must further determine whether the subject concerns a
state, local, or mixed matter in order to determine which regulation survives the conflict.
Finally, both legislative and imperio regimes may recognize preemption by occupation of the field. Structural differences
between the home rule models, however, lead courts to employ this form of preemption differently depending on whether they
are in an imperio or legislative regime. Because municipalities in legislative home rule states have no immunity powers at all,
inconsistent state statutes always defeat local ordinances. Therefore, courts in legislative home rule states use preemption by
occupation of the field sparingly, if at all. As the Illinois Supreme Court has noted, if local regulations become so varied as to
threaten important state interests, the structure of legislative home rule itself provides the proper remedy by allowing the state to
demand local uniformity simply by expressly denying local governments the power to act in the relevant field. [FN90] Unlike
imperio regimes, the complete lack of immunity powers in legislative home rule states imposes an additional obligation on
courts in those states to require especially convincing evidence of legislative occupational intent before allowing preemption by
occupation of the field, if they do allow anything short of express preemption.
The availability of immunity powers in imperio regimes, however, does not imply that courts should easily find ordinances
preempted by occupation of the field. The general importance of self-governance recognized by imperio home rule requires that
courts impose demanding scrutiny to find legislative intent to occupy a field before they conclude that the legislature has
preempted local action, and many states do engage in such demanding scrutiny. [FN91]
*112 IV. THE LEGALITY OF LOCAL MINIMUM WAGE LAWS UNDER HOME RULE
Defenders of challenged municipal minimum wage ordinances have to tailor their arguments to the particular models of
home rule and preemption applicable to their jurisdiction. In either regime, the defense will typically involve two stages. First,
the defender must show that the municipality has the power to enact municipal minimum wage laws; second, the defender must
show that no state law, especially the state minimum wage law (if there is one), preempts the ordinance. [FN92]
A. VIABILITY IN AN IMPERIO REGIME
1. Imperio Home Rule Powers to Enact Wage Regulation
In an imperio state, municipalities have power over local affairs. Therefore, to demonstrate municipal power the defender
should argue that minimum wage laws address local needs and concerns. Indeed, the local costs of living often vary dramatically within a state--an average three bedroom apartment rents for $1018 per month in New York City but only $524 in
Binghamton, New York. [FN93] Thus, a statutory flat-rate minimum wage is unlikely to accommodate the needs of local
residents throughout the state, because it is politically implausible that the statutory rate will reflect the cost of living in the most
expensive parts of the state. Insofar as local minimum wage laws directly address the health and well-being of local residents by
ensuring that wages can adequately cover local costs of living, these ordinances do serve municipal purposes and benefit local
affairs. As a result, imperio municipalities are quite likely to enjoy sufficient power to enact municipal minimum wage laws.
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*113 2. Imperio Preemption Tests

The harder question in an imperio regime is whether state minimum wage laws preempt local ordinances. Unless a local
government can show that minimum wage regulation concerns purely local affairs, but not areas of statewide concern, imperio
states that expressly deny local governments the ability to regulate wages will effectively preempt any such regulation. Indeed,
even the strongest advocates of local wage regulation would be hard-pressed to argue that wage regulation concerns local
affairs exclusively: states clearly have significant interests in regulating wages. Therefore, local wage regulations probably
would not be viable in imperio states that expressly deny local governments the ability to regulate wages, such as Arizona and
Colorado. [FN94]
In the imperio states that do not expressly forbid local governments from regulating wages, municipalities have to avoid
preemption by direct conflict and by implied preemption through occupation of the field. Defenders of the ordinances can
overcome the argument from direct conflict. Municipal minimum wage ordinances that impose higher wage floors than are
demanded by state statute clearly do not permit what the statutes prohibit: for example, businesses that comply with a local
ordinance requiring a minimum wage of $8.50 are, a fortiori, in compliance with a state minimum of $5.15. Challengers may
argue that the ordinances nevertheless prohibit what the statute permits, namely the payment of wages in the range between the
state minimum (e.g., $5.15) and the local minimum (e.g., $8.50). Because most states recognize that statutory standards usually
impose a floor rather than a ceiling, this argument should fail, at least where the main purpose of the state statute is to ensure
that workers make wages adequate to maintain their health and welfare. [FN95] *114 Indeed, at least one state has codified the
rule that local standards do not conflict with state standards simply by being more stringent. [FN96]
The challengers may have a stronger argument if the state minimum wage law expressly establishes a policy of balancing
the interests of employers and low-wage workers in setting its minimum wage rate. [FN97] In such a case, challengers may
argue that because wage regulation policy directly accommodates employer interests, the state legislature has done more than
leave wages above the state minimum unregulated through its prohibition on sub-minimum wages; rather, they would argue
that the state has affirmatively authorized employers to pay any wage above the state minimum. If courts find this argument
convincing, then they may conclude that ordinances imposing a higher minimum directly conflict with the legislature's affirmative authorization of super-minimum wages. Very few states, however, incorporate the protection of employer interests
directly into the policy behind its minimum wage statute. [FN98] Therefore, whatever its merits, this argument has no teeth in
the vast majority of imperio states.
To demonstrate that state minimum wage laws evince an intent to occupy the field of wage regulation that preempts local
action, challengers must show that the legislature has regulated wages so exhaustively and completely as to preclude local
action. Defenders of minimum wage ordinances will usually be able to defeat this argument as well by pointing out that
minimum wages do not require jurisdictional uniformity. FLSA, for example, explicitly recognizes the need for variety in
minimum wages *115 by contemplating higher state and municipal minimums. [FN99] Moreover, the theoretical and empirical
evidence about the effects of the minimum wage, discussed in Part IV.C, infra, strongly suggests that moderate increases in the
minimum wage have negligible effects on the labor market, and can either increase or decrease employment. Therefore, as long
as local variations in the minimum wage remain within moderate bounds, local heterogeneity should have no adverse effect on
the state labor market.
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Defenders can also emphasize that many state minimum wage statutes explicitly include a savings clause that maintains
any wage standards in effect prior (and, occasionally, subsequent) to the adoption of the state statute. [FN100] Some go further
and adopt wage boards that can recommend increases in the minimum wage for certain localities. [FN101] In these cases, the
state policy supporting minimum wages clearly contemplates variation in the minimum wages applicable within a state in such
a way that the legislature cannot have meant to occupy the field of wage regulation exclusively.
In short, while certain features of particular state minimum wage policies may preempt local minimum wage ordinances by
direct conflict or by occupation of the field, the vast majority of imperio states should allow them. Local minimum wage ordinances further--rather than conflict with--most state policies of supporting adequate wages, especially because there is neither
legal nor economic need for uniformity.
B. VIABILITY IN A LEGISLATIVE REGIME
1. Legislative Home Rule Powers to Enact Wage Regulation
The analysis of regulatory power is simpler in a legislative regime than in an imperio regime, although the preemption
analysis in a legislative regime adds a few wrinkles to the analysis just offered for imperio regimes. Legislative home rule
municipalities enjoy the full range of state police power. Because courts have understood minimum wage regulations to be
within states' police powers since 1937, legislative home rule municipalities have long *116 enjoyed sufficient regulatory
power to regulate wages. [FN102] Preemption poses the more significant obstacle for minimum wage ordinances in legislative
regimes.
2. Legislative Preemption and the Private Law Exception
Unlike imperio regimes, legislative home rule regimes typically enjoy constitutional and statutory provisions that define
the applicable preemption standards quite precisely. Because local governments have no immunity against conflicting state
regulation in legislative regimes, these provisions generally require state legislative action to deny a power to local governments expressly, explicitly, and specifically before a statute can preempt an ordinance. [FN103] As a corollary to the requirement that the legislature expressly deny a power to local governments in order to preempt them, courts in legislative home
rule states usually reject implied preemption by state occupation of a field, and require the legislature to express its intent
explicitly in order to reserve the field exclusively to the state before finding it occupied. [FN104]
In addition to express denial and express intent to occupy a field, legislative home rule regimes also often recognize
preemption by direct conflict. The test for direct conflict is normally the same in legislative states as in imperio states: an
ordinance cannot forbid what a statute affirmatively permits, nor can it permit *117 what the statute forbids. Indeed, courts in
legislative states usually seek to avoid irreconcilable conflict between state and local law wherever possible by harmonizing the
two. [FN105] Thus, as in imperio states, direct conflict normally causes no problem for municipalities that impose wage floors
above the state minimum, because compliance with a higher minimum automatically entails compliance with the lower one.
In short, the primary grounds on which local minimum wage laws face preemption in states with legislative home rule
occur when states expressly deny localities the power to regulate wages, or expressly reserve the field of wage regulation to the
state. Because only four legislative home rule states specifically deny municipalities the power to enact local minimum wage
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laws, [FN106] the remaining legislative home rule states would seem to be able to enact municipal minimum wage laws.
Unfortunately, local wage regulations face one more hurdle in the analysis of their viability because the AMA model builds
one specific denial of municipal power into the home rule grant itself. In the eight states with the so-called private law exception, [FN107] municipalities lack the power to enact private or civil laws governing civil relationships except as incident
to the exercise of an independent municipal power. [FN108] Therefore, while the nonpreempted states that lack the private law
exception should have little problem enacting local municipal wage regulation, the viability of local minimum wage regulation
in the remaining eight depends on the meaning of the private law exception.
*118 3. The Private Law Exception
The AMA model of legislative home rule explicitly denies municipalities the power to enact private or civil laws governing civil relationships except as incident to the exercise of an independent municipal power. [FN109] Only two cases have
ever considered the application of this so-called private law exception to minimum wage ordinances. The first, New Orleans
Campaign for a Living Wage v. City of New Orleans, [FN110] did not decide the question because Louisiana is one of the six
legislative home rule states that specifically denies municipalities the power to regulate minimum wages. [FN111] Therefore,
the court found the municipal ordinance preempted, without needing to resolve the applicability of the private law exception.
[FN112] The second, New Mexicans for Free Enterprise v. City of Santa Fe, upheld the minimum wage ordinance on the
narrower ground that a statutory devolution of police powers to New Mexican municipalities provides the independent*119
municipal power needed to avoid the private law exception. [FN113] Therefore, no court has truly decided whether the private
law exception should ban local minimum wage laws. A robust account of public and private law in American jurisprudence,
however, suggests that it should not.
a. A Robust Account of the Distinction between Public and Private Law.
There are few well-developed accounts in the legal literature of the distinction between public and private law as it relates
to the legislative home rule model. Most discussions can be characterized as intuitive accounts of the distinction. A fuller
understanding of the private law exception requires a functional and a conceptual account in addition to these intuitive accounts.
In an article containing perhaps the most thorough analysis of the subject, Gary Schwartz suggests that, in the context of the
private law exception, private law clearly is intended to refer to private law in the rough sense that contracts, property, and
torts are private law. [FN114] On this account,
(p)rivate law consists of the substantive law which establishes legal rights and duties between and among private
entities, law that takes effect in lawsuits brought by one private entity against another. The complement of private law is
thus public law--the substantive law defining the legal obligations of private individuals or entities to the government,*120 and also establishing their liberties and opportunities in relation to the government. [FN115]
Under this explanation, minimum wage regulations fall on the public side of the divide. Prior to 1938, in states that didn't
regulate wages, the only regulation of the labor market was through private contracting. Minimum wage laws clearly involved a public intervention into these private negotiations, enforceable in lawsuits brought by the state Attorney General rather
than private individuals. Indeed, it was exactly this public determination of minimum wages to which adherents to the sacro-
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sanct liberty of private contract objected. [FN116] Thus, the intuitive account makes a prima facie case that minimum wage
laws are not subject to the private law exception.
Moving beyond the intuitive account to a more functional analysis, Terrance Sandalow suggests that the AMA framers
worried that if each of the thousands of cities and villages entitled to exercise home rule powers were thereby empowered to
adjust contract, property, and the host of other legal relationships between private individuals, chaos would ensue. [FN117]
Yet Sandalow does not explain why chaos would ensue from locally heterogeneous contract and property law but not from
locally heterogeneous public law. Transaction costs might explain the difference. Procedurally, heterogeneous local private law
could impose far greater transaction costs than heterogeneous public law in two ways: first, by imposing greater costs of
learning the applicable law, and, second, by imposing greater costs of enforcing the applicable law. [FN118] Of course, the
costs of discovering the applicable law may not always be smaller for public than for private law. *121 But they are likely to be
smaller for local minimum wage laws than they would be for local contract laws because cities that adopt local minimum wage
laws often bear affirmative obligations to inform businesses of the relevant wage rates. [FN119]
Substantively, because private law--torts, contracts, family law, and the like--affects so many aspects of everyday life,
whereas public law tends to focus on a narrower range of conduct affecting a narrower range of people, most commentators
argue that a multiplicity of private law would be far more costly than a multiplicity of public law. [FN120] Of course, determining the actual change in transaction costs following any particular modification to public or private law is an empirical
matter. The economic evidence discussed in Part IV.C, infra, however, suggests that moderate increases in the local minimum
wage will have negligible employment effects, which could be either positive or negative. Such negligible effects will not
disrupt the labor market so severely as to interfere with the ability of business to recruit and hire workers. Therefore, both
procedurally and substantively, a variety of public laws, like the minimum wage laws, will not impose costs so heavy as to
undermine the nature of the private and civil relationships they may touch.
Finally, the jurisprudential revolution that led up to West Coast Hotel offers a third, more conceptual account of the relationship between minimum wage regulations and private law. Sixty years of jurisprudential development, [FN121] culminating in *122 West Coast Hotel, [FN122] suggests that the health and excesses of an economy benefit or burden the public as
a whole and, therefore, producing a well-functioning economy is always in the public interest. Because that end is legitimate
and the best means of doing so are often uncertain and contested, the legislature is entitled to its judgment [FN123] so long as
it avoids unreasonable, arbitrary, and capricious means. [FN124] This position rejects the prior view that public economic
regulation of private relationships is appropriate only when the state can affirmatively demonstrate to the court that the regulated business has cloaked itself with a public interest which the regulation narrowly advances. [FN125]
The contemporary understanding, crystallized in West Coast Hotel, is that public interest is neither monolithic nor natural
and unchanging. Rather, it must be determined deliberatively in legislative bodies, which are better suited than courts to determine the contours and content of public economic needs. Because legislatures across the country have recognized for nearly
seventy years that minimum wage regulations advance important public interests, [FN126] courts should characterize these
regulations--at the *123 federal, state, and local level--as public rather than private law. Therefore, municipalities seeking to
regulate wages should not be subject to the private law exception in so doing.
Together, the intuitive, functional/transaction cost, and conceptual accounts of public law combine powerfully to support
the ability of municipalities to adopt minimum wage regulations as public law, without suffering condemnation by the private
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law exception.
b. Judicial Misinterpretation of the Private Law Exception
Very few courts have interpreted the private law exception. While deciding a challenge to a municipal rent control ordinance in Marshall House v. Rent Review and Grievance Board of Brookline, [FN127] Massachusetts became the first state to
construe the exception. Here, the court recognized that the rent control ordinance serves public purposes. The court, however,
found the ordinance barred by the private law exception because the method (it) adopted is primarily civil in that it affords to
the board power in effect to remake . . . the parties' contract creating a tenancy. [FN128] Although the private law exception,
by its terms, does allow municipal private law when it is incidental to the exercise of an independent municipal power,
[FN129] the court held that this clause does not save the primarily civil method of enforcing rent control, even when it effectuates the admittedly public purposes of maintaining affordable housing, because doing so would allow cities to bootstrap
private law onto public programs. Subsequent cases in Massachusetts and Indiana have affirmed this logic. [FN130]
*124 While no court has specifically reversed these precedents, their errors are significant and obvious. These cases rest
primarily on two arguments: first, public law strikes at the heart of private relationships and interferes too directly with them,
thereby becoming private law subject to the exception; second, municipalities cannot enlist private enforcement to facilitate
public policy without being condemned by the private law exception.
Sixty years of jurisprudential evolution, from Munn [FN131] through Bunting [FN132] and Nebbia [FN133] to West Coast
Hotel, [FN134] demonstrate that these arguments lack merit. [FN135] While the amount of rent no doubt is a central characteristic of a contract between landlord and tenant, there is nothing sacrosanct about the prices of commodities, the rent charged
in leases, or the wages offered by employers that shields these hearts of the contract from governmental regulation. [FN136]
Private economic relationships have no sacred hearts immune from government regulation. If an aspect of a private economic
relationship gives rise to problems that affect the public, states can use their police power to regulate that aspect, no matter how
central it may be to the economic relationship.*125 [FN137] When states delegate legislative power to their municipalities, that
legislative power to enact public regulations is just as broad as the state power, unless and until the state specifically denies such
a power. [FN138]
Indeed, the AMA model adds the independent municipal power clause to the private law exception precisely to make this
clear. Under this model, municipalities can enact private law--or enlist private enforcement of public law--when such provisions are incident to the exercise of an independent municipal power. [FN139] There is no illegitimate bootstrapping here. If
a court recognizes a rent control ordinance as public law, as the Massachusetts Supreme Judicial Court did in Marshall House,
[FN140] the municipality derives its power to enact that regulation from the home rule delegation of legislative power. It is this
exercise of municipal power that saves the private right of action from the private law exception. [FN141] Marshall House is
simply wrong. To the extent that the adoption of a private right of action may be considered bootstrapping, it is bootstrapping
explicitly permitted by the AMA model of legislative home rule. They are entirely unpersuasive and should not be followed.
Therefore, the Massachusetts and Indiana cases that condemn rent control ordinances as unauthorized exercises of municipal private lawmaking seriously misconceive the distinction between public and private law while simultaneously misunderstanding the role of private enforcement in public law that the AMA model *126 specifically contemplated and sought to
facilitate. [FN142] They further rely on antiquated understandings of a sacrosanct heart of a private economic relationship
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immune from government regulation.

Because the private law exception, properly interpreted, does not preempt local wage regulation, municipalities in states
with legislative home rule can avoid preemption in all but the six states that specifically deny local governments the ability to
regulate wages. [FN143] Therefore, municipalities in just over twenty legislative states can enact minimum wage ordinances.
[FN144]
C. THE LEGAL RELEVANCE OF THE ECONOMICS OF THE
MINIMUM WAGE
As discussed above, the legal viability of local minimum wage laws often depends on the extent to which wage regulation
has significant extraterritorial effects or requires statewide uniformity. If a court perceives severe extraterritorial effects or a
need for statewide uniformity, it will be more likely to (a) designate the regulation as a matter of statewide concern, thereby
entitling an imperio state to preemption in case of conflict; (b) find that the state minimum wage law has impliedly occupied the
field of wage regulation, in either an imperio or legislative regime; or (c) interpret the private law exception to deny local
governments the power to regulate wages in states with legislative home rule. The viability of local wage regulation depends
critically on the judiciary's appreciation of the economic effects of minimum wage regulation, generally, and of multiple wage
regulations more particularly.
The judiciary may initially worry that increasing the minimum wage in some parts of the state might cause businesses in
*127 that locality to pack up and leave in order to escape rising labor costs, thereby severely disrupting local industry and jobs.
Minimum wage regulations, however, do not affect all industries equally. Restaurants, hotels, grocery stores, variety stores, and
department stores employ the majority of minimum wage workers. [FN145] Whatever economic model best reflects the
low-wage labor market, it is at least clear that the industries employing the vast majority of low-wage workers are exactly those
industries least likely to forum-shop in order to avoid regulations. Unlike manufacturing plants or call-centers, the retail enterprises enumerated above all need to be geographically close to their customers in order to sell their wares.
Given that capital flight is an unlikely consequence of minimum wage regulation, what are the likely effects of this kind of
regulation? A sufficient answer to this question requires both a theory about how the low-wage labor market works and facts
supporting that theory. The intuitions of some policy-makers to the contrary, [FN146] economists agree neither on a model that
fits the low-wage labor market nor on the facts that best describe that market. They agree on only one effect of increasing the
minimum wage: covered workers will earn more income. Beyond that, much remains disputed. The lack of uncontested evidence, theoretical or empirical, of the need for uniform wage regulation implies that local governments should have broad
discretion in adopting local minimum wage regulations under home rule powers.
*128 1. Contested Models of the Low-Wage Labor Market
The leading economic models of the low-wage labor market tend to fall into one of two main camps: the standard model
and the critical models. The standard model claims that the lowwage labor market is a classically competitive market, just
like a commodity market. While the critical models (e.g., old institutionalist, revisionist, and new institutionalist) are more
varied, they share a common theme: power disparities between workers and employers--derived from critical assumptions
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about individual behavior, information processing, market structure, or governance of the employment relationship--imply that
the lowwage labor market is not classically competitive and, therefore, employers can exercise some discretion in determining
wages. Economists describe this kind of market, where employers have power over workers and can exercise discetion in
setting wages, as a monopsony. [FN147]
The standard model employs the familiar upward-sloping supply curves and downward-sloping demand curves, positing
that the labor market reaches equilibrium when wages equal the marginal product of labor. [FN148] Given these assumptions,
a binding minimum wage [FN149] leads to a reduction in the employment demanded. Like any theory, the standard model
develops its supply and demand curves based on a number of simplifying assumptions. Behaviorally, the standard model assumes that people and firms are rational individuals, meaning that they have welldefined preferences [FN150] and act in
order to maximize utility, [FN151] subject to budget constraints. Moreover, information is costless, and *129 if it is not, then
individuals take the cost of information into account when maximizing utility just as they would any other cost. [FN152]
Structurally, the standard model assumes that wages internalize all relevant social costs; that market power is primarily, if not
exclusively, a function of the number of market actors; [FN153] that where there are many market actors, no single actor has
any power to negotiate over the price of a good but must take the market price as given; [FN154] that the factors of production
are costlessly mobile (again, if not, individuals take that into account); that homogeneous goods (including labor) will trade at
one price; [FN155] and, that labor behaves in a competitive market just like any other commodity would. [FN156] While
adherents to the standard model need not demand that each of these assumptions actually holds true in the real world, they do
claim that they are true enough to generate reliable predictions based on the competitive model. [FN157]
The standard model makes a variety of forecasts about the operation of the low-wage labor market. Most obviously, it
predicts that increasing the minimum wage raises the income of low-wage workers and makes them more costly to employers.
More subtly, *130 the model predicts that increasing the minimum wage reduces employment; wages disperse uniformly based
on skill and seniority of workers (proxies for their marginal product), rather than clustering them around the minimum; if
employers lawfully can use subminimum wages, they will; firms pass through the costs of increased minimum wages to
consumers in the form of higher prices; and employers' profits shrink after labor costs rise due to an increased minimum.
[FN158] A priori, the low-wage labor market does satisfy many of the assumptions of the standard competitive model. Principally, there are many employers competing in the low-wage market (in the fast food industry, for example, McDonald's,
Burger King, Wendy's, KFC, and Taco Bell all crowd the market). Moreover, low-wage workers tend to be less skilled and,
therefore, relatively homogenous. By satisfying the standard model's assumptions, the low-wage labor market provides a particularly good test of that model's relevance to labor economics in general. [FN159]
In contrast to standard economists, critical economists tend to be thoroughgoing empiricists. Rather than starting with an
elegant economic theory and hunting for confirmation in actual labor markets, the critical economists start with detailed observations of these markets in operation. Such rich empiricism invariably leads them to question the adequacy of the standard
model and many of its behavioral and structural assumptions. The old institutionalists, for example, began by observing labor
problems: employee turnover, long hours, industrial accidents, poverty-level wages, excessive work speeds, irregular work
schedules, workplace autocracy, industrial strife, and unemployment. [FN160] Careful observation of these labor problems led
the old institutionalists to develop models of the labor market based on two behavioral and structural observations that differed
dramatically*131 from the standard model. First, they found that people rarely act like the rational, maximizing economic
agents driving the standard model; rather, their choices are heavily influenced by underlying emotional states (e.g., anger,
envy, lust, greed) and constrained by people's limited ability to think through problems and acquire the relevant information to
make an informed decision. [FN161] (These cognitive constraints were later termed bounded rationality.) Second, they
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found that the market contains defects, as compared to the perfectly competitive market, because employers rarely pay wages
that fully internalize social costs, [FN162] workers have limited information about available jobs, and their mobility to transfer
even when they are aware of an opening is limited by social and family ties. [FN163]
Viewing legal and informal institutions, rather than market forces per se, as the primary determinants of wages, [FN164]
the old institutionalists proposed legally enforceable wage and labor standards to bring about macroeconomic stabilization.
[FN165] In this model, wage standards shift power from employers to workers, and promote efficiency by counteracting the
market defects that allow employers to pay sub-optimal wages; indeed, shifting power gives employers incentives to manage
their human resources more effectively and efficiently. [FN166]
*132 Revisionist models follow the institutionalists' insights into bounded rationality and market defects, while bringing
more rigorous analytical tools to bear on their study. [FN167] For example, these models clarify the notion of limited mobility
by developing formal theories of the costs of job searches, based on the importance of information, the uncertainties in the
search, the idea of reservation wages (that workers might be willing to accept less than their marginal product simply in order to
meet their immediate needs and survive), and the idea of incomplete contracting. [FN168] The latter, incomplete contracting,
makes labor markedly different from the typical commodity traded in competitive markets. Whereas owners can exert complete
dominion over commodities and employ them however they please in the production process, employers cannot exert such
dominion over labor. Even if employers have autocratic power in the workplace, they still need to worry about motivating
workers not to shirk. Because employers can sometimes use super-competitive wages as incentives both to motivate workers
and to make the workers' current jobs more valuable than the alternatives so as to make discharge especially costly (the efficiency wage theory), the revisionists also questioned the direct link between minimum wage increases and reduced employment.
The New Institutional Economics (NIE) model adds to this picture formal treatments of the governance issues that arise
from transaction costs more generally, including the costs of conducting a transaction (including search costs), the costs of
implementing a transaction (including monitoring costs), and the costs of enforcing a transaction (including legal costs, if
necessary). [FN169] Informational asymmetries between employers and workers as to the working conditions and job-specific
investments in training and learning complicate the picture even further, giving far less clear predictions of the likely effects of
a minimum wage increase.
*133 In short, economic theory does not provide a unitary prediction about the effects of the minimum wage. By bracketing concerns with market power and making simplifying assumptions about human behavior, the standard model makes the
strongest, least equivocal, predictions. In the standard model, wage regulation leads inevitably to job loss; therefore, heterogeneous local wage regulation leads inevitably to a chaotic labor market. Critical models, however, suggest that the standard
model is at best incomplete, and at worst fundamentally flawed. These models recognize that power disparities and market
defects vary with the local institutional context. Unlike the standard model, critical models suggest that wage standards adapted
to local conditions could very well be efficiency-enhancing in addition to being fairer.
Just as (t)he 14th Amendment does not enact Mr. Herbert Spencer's Social Statics when analyzing due process economic
liberties, [FN170] home rule powers and preemption standards should not enact the standard neoclassical economic model of
the lowwage labor market. They certainly should not do so when alternative models are rational and may prove better suited to
promoting local needs. Were courts to constrain municipal powers to regulate wages or were they to allow excessive preemp-
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tion based on assumptions about the need for statewide uniformity or the prevalence of extraterritorial effects, they would be
imposing the assumptions of the standard neoclassical economic model onto the legal regimes governing home rule. Doing so
would revive at the local level the long-interred theory of substantive due process review of economic policy. [FN171] To avoid
this long-rejected mode of jurisprudence, advocates of local wage regulations need not prove that the critical model is right.
Local governments have sufficient regulatory authority under home rule to experiment with rational economic policy choices
suited to local needs, at least until the state preempts them from doing so.
*134 2. Contested Evidence of Minimum Wage Law Effects
Discord among economists over the actual, empirical effects of the minimum wage on the low-wage labor market echoes
the discord over its theoretical models, further strengthening the case for local discretion in wage regulation. For a while, it
appeared as though economists were reaching consensus about the minimum wage. In their 1982 paper, The Effect of the
Minimum Wage on Employment and Unemployment, [FN172] Charles Brown et al., review this apparent consensus. A
comprehensive review of the time-series studies conducted through the 1970s
indicates a reduction of between one and three percent in teenage employment as a result of a 10 percent increase in
the federal minimum wage. (The authors) regard the lower part of this range as most plausible because this is what most
studies, which include the experience of the 1970s and deal carefully with minimum-wage coverage, tend to find. The
other consistent finding is a notable withdrawal from the labor force by teenagers in response to an increased minimum,
to the extent that unemployment effects of the higher minimum are considerably weaker than the disemployment effects.
[FN173]
Because these results were relatively rigorous, especially compared to prior studies, for a little over a decade economists
seemed to agree that minimum wage increases would (a) increase the wages of covered workers, [FN174] (b) without substantial effects on adult workers, [FN175] but (c) with small, but statistically significant, reductions in teenage employment, (d)
that would primarily take the form of slowed growth in employment opportunities, rather than discharges or reductions in hours
of currently employed *135 teenagers. [FN176] While the policy implications of these results remained contested, at least
throughout the 1980s they seemed to vindicate the advocates of the application of the standard model to the low-wage labor
market. Their political effect was to shift the burden of the debate onto the advocates of the minimum wage to demonstrate that
the minimum wage was beneficial overall, despite these marginal dampers on teenage employment. [FN177]
While the time-series data from the 1970s convinced many economists of the relevance of the standard model for the
lowwage labor market, they did not settle the question for everyone. An ideal test of the theory, like that used in the natural
sciences and in medicine, would randomize the test subjects and treat the experimental group with a minimum wage increase
while withholding that treatment from the control group. Of course, practically and perhaps ethically, such randomized experiments are impossible in economic policy. However, a number of fortuities around the 1989 and 1991 state and federal
increases allowed Lawrence Katz, David Card, and Alan Krueger to conduct a series of natural experiments that approximated the randomized experiments used in the hard sciences. [FN178] The first experiment involved a comparison of the
effects of a minimum wage increase that covered New Jersey fast-food restaurants, but not those in Pennsylvania. This study
also compared low-wage employers in New Jersey with high-wage employers. Card and Krueger conducted similar internal
comparisons of low-and highwage employers in Texas and California. Additionally, they conducted a series of cross-state
studies to capture the effects of the 1989 and 1991 federal increases on low-wage workers in general, on workers in the retail
industries, and on workers in the restaurant*136 industries. In each study, they found either no statistically significant effect on
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employment outcomes or, occasionally, a small increase in employment following the minimum wage increase. [FN179]
Because these findings challenged the neoclassical consensus and, therefore, warranted skepticism, the authors also reassessed
prior studies based on time-series data and on crosssectional data, finding that many of these studies were either methodologically flawed or driven by publication bias. [FN180] Finally, they reviewed international evidence, finding that many studies of
foreign labor markets are consistent with their results that increases in the minimum wage either do not affect employment at
all, or slightly increase employment. [FN181]
In many respects, these studies are widely regarded as methodologically superior to the studies that generated the neoclassical consensus in the 1980s. [FN182] While they leave strict adherents to the standard model unconvinced, [FN183] they
have persuaded many others. [FN184] At a minimum, Card and Krueger's results have *137 changed the terms of the debate,
which is now over whether modest minimum wage increases have no employment effect, modest positive effects, or small
negative effects. It is not about whether or not there are large negative effects. [FN185] Furthermore, recent empirical and
theoretical research supports their characterization of the low-wage market as monopsonistic and seems to be generating a new
consensus among economists about the minimal--and occasionally positive--impact that moderate increases in the minimum
wage have on employment. [FN186]
Whether or not the emerging consensus supporting the monopsonistic picture of the low-wage labor market eventually
solidifies among the economics profession, there remains much uncertainty about the precise effects of the minimum wage on
employment. The only thing known with certainty about the minimum wage is that it increases incomes for covered low-wage
workers. [FN187] In particular, there is no uncontested evidence that moderate increases in the minimum wage substantially, or
even marginally, disrupt labor markets. Nor is there adequate evidence indicating which increases are moderate such that the
monopsonistic effects will likely occur. Without such evidence, local legislatures with home rule powers should have broad
discretion to adopt the economic policy best suited to the needs of their communities. [FN188] The opponents of such legislation should have the burden to demonstrate chaos or a particular need for statewide uniformity in economic policy. [FN189]
Based on the best contemporary theoretical and empirical evidence, they cannot meet this burden.
*138 V. CONCLUSION
Applying the analysis developed in this Note, local minimum wage ordinances should be strongly viable in the legislative
states that have not expressly denied local governments the power to regulate wages--about half of the states. (These estimates
are rough estimates, because the classifications in this Note involve ideal types, rather than detailed analyses of the regime in
any particular state.) These ordinances should fare poorly in both imperio and legislative states that have expressly denied local
governments such power-- about a quarter of the states. The viability of these ordinances in the remaining quarter of the
states--imperio states that have not expressly denied localities power over wages--is less determinate, and will depend on how
receptive courts are to the policy arguments offered throughout this Note. If courts are receptive to these arguments, municipalities in about three-quarters of the states have at least a decent chance to bring economic justice closer to home by enacting
local minimum wage laws carefully tailored to their local costs of living. These municipalities can, if they so choose, ensure
that no worker will earn starvation-level wages within their borders, even when the federal and state standards are inadequate to
the task. If they do so, they will be continuing a long tradition of policy innovation and backstopping at the local and state level.
It is up to them to seize the legal opportunity.
VI. APPENDIX: FEATURES OF STATE REGIMES RELEVANT TO THE LEGAL VIABILITY OF MUNICIPAL MIN-
39 CLMJLSP 93
Page 19
IMUM WAGE REGULATIONS

All of the following designations are based primarily on the author's reading of the constitutional and statutory provisions,
without extensive consultation of the cases that interpret them. Therefore, these determinations should be taken as initial assessments, subject to refinement and revision upon additional research.
SUMMARY OF RELEVANT FACTORS:
Dillon's Rule (3 states): MS, VT, VA
Imperio (13 states): AZ, AR, CA, CO, HI, KS, ME, MD, NE, NV, NH, RI, TN
*139 Legislative (28 states): AK, DE, FL,
ID, IL, IN, IA, KY, LA, MA, MI, MN, MO, MT, NM, NY, ND, OH, OK, OR, PA, SD, TX, UT, WA, WV, WI, WY
Private Law Exception (8 states): DE, GA, IN*, IA, LA*, MA*, MT*, NM
Mixed Regime/Difficult to Classify (6 states): AL, CT, GA, NJ, NC, SC
Specific Denials (8 states): AZ, CO, FL, GA, LA, OR, SC, UT
law exception.
State
Municipal
Powers
*These states have unusually strong versions of the private
Home
Private
State
Denial/
and Home Rule
Rule
Law
Minimum
Express
Provisions
Type
Exception?
Wage Law
Preemption?
AL
None. Compare
Weak legislaALA. CONST. art. tive.
XII, 220-228
with ALA. CODE
11-45-1 (1975).
N/A.
None.
N/A.
AK
ALASKA
CONST. art. X,
1, 2, 11.
No.
ALASKA
STAT.
23.10.050 to
No.
Legislative.
39 CLMJLSP 93
Page 20
23.10.150 (2004).
AZ
ARIZ.
Charter based.
CONST. art. XIII, Imperio style.
1, 2.
No.
AR
ARK. CONST.
art. 12, 3, 4.
ARK. CODE
ANN. 14-42-307
(West 1998).
Imperio at best.
CA
CAL. CONST.
art. XI, 5(a), 7.
Imperio.
No.
CAL. LAB.
No. See CAL. LAB.
CODE 1171 to CODE 1205(b) (West
1205 (West 2003). 2003) (expressly allowing local regulation).
CO
COLO.
CONST. art. XX,
6.
Imperio.
No.
COLO. REV.
COLO. REV.
STAT. ANN. STAT. ANN.
8-6-101 to 8-6-119 8-6-101(3)(a) (West
(West 2004).
2003).
CT
CONN.
CONST. art. X,
1. CONN. GEN.
STAT. ANN.
7-148(c)(7),
(c)(10) (West
1999).
None. Common law with

broad statutory
delegations.
No.
CONN. GEN.
STAT. ANN.
31-58 to 31-69b
(West 2003).
N/A or no.
Unclear.
None. But see

ARIZ. REV.
STAT. 23-311
to 23-329 (LexisNexis 1995) for
Minimum Wage
Regulation for
Minors.
ARIZ. REV. STAT.

23-362 (LexisNexis
2004) (preempting
minimum wage ordinances, but not living wage ordinances).
ARK. CODE
No. But see ARK.
ANN. 11-4-201 CODE ANN.
to 11-4-219 (West 11-4-204 (savings
2002).
clause).
No.
39 CLMJLSP 93
DE
DC N/A.
No constitutional provision of
municipal power in
general. DEL.
CODE ANN. tit.
22 802 (1997).
N/A.
Page 21
Legislative.
N/A.
FL
FLA. CONST.
art. VIII, 2(b).
FLA. STAT.
166.021 (2005).
GA
GA. CONST.
art. IX, 2. GA.
CODE ANN.
36-35-3(a),
36-35-6 (2000).
HI
HAW.
CONST. art. VIII,
2, 6.
ID
IDAHO
CONST. art. XII,
2. IDAHO CODE
ANN. 50-301,
302 (2000).
Imperio.
Yes.
D.C. CODE
ANN. 32-1001
to 32-1015 (LexisNexis 2001).
DEL. CODE
No. But see DEL.
ANN. tit. 19
CODE ANN. 19 912
901 to 914 (1995). (1995) (savings clause).
N/A.
No.
FLA. CONST.
FLA. STAT.
art. X, 24.
218.077(2) (2005) (allows living wage
style, but not minimum
wage style).
Yes.
GA. CODE
GA. CODE ANN.
ANN. 34-4-1 to 34-4-3.1(b)(2) (2004)
34-4-6 (2004).
(preempts both living
wage and minimum
wage ordinances).
Imperio.
No.
HAW. REV.
STAT. ANN.
387-2 (LexisNexis
2004).
No.
Legislative.
No.
IDAHO CODE
ANN. 44-1501
to 1509 (2003).
No.
Between
imperio and legislative.
39 CLMJLSP 93
Page 22
IL
ILL. CONST.
art. VII, 6(a),
6(i), 6(m). 5
ILL.COMP STAT.
ANN. 70/7 (West
2005).
IN
No constituWeak legislational provisions. tive.

IND. CODE ANN.
36-1-3-3,-4,-5
(LexisNexis 2000).
IA
IOWA
CONST. art. III,
38A, 39A. Iowa
Code Ann.
364.1, 364.2, 364.3
(West 1999).
Legislative.
Yes.
IOWA CODE
ANN. 91D.1
(West 1996).
KS
KAN.
CONST. art. XII,
5(b), 5(c)(1),
5(d).
Imperio.
No.
KAN. STAT.
No. But see KAN.
ANN. 44-1201 STAT. ANN. 44-1212
to 1213 (2000).
(2000) (savings clause).
KY
KY. CONST.
156b. KY. REV.
STAT. ANN.
83.520 (West
1995).
Legislative.
No.
KY. REV.
No. But see KY.
STAT. ANN. REV. STAT. ANN.
337.275 to 337.405 337.395 (savings
(LexisNexis 2001). clause).
Legislative.
Yes.
LA
LA. CONST.
Legislative.
No.
820 ILL.
COMP. STAT.
ANN. 105/1 to
105/15 (West
1999).
No. But see 820

ILL. COMP. STAT.
ANN. 105/14 (West
1999) (savings clause).
Yes--unusually
IND. CODE
No. See IND.
strong form.
ANN. 22-2-2-1 CODE ANN.
to 22-2-2-4 and
22-2-2-10 (LexisNexis
22-2-2-8 to
1997).
22-2-2-13 (LexisNexis 1997).
None.
No.
LA. REV. STAT.
39 CLMJLSP 93
Page 23
art. VI, 5(A),

5(E), 5(F), 6, 7, 9.
ANN. 23:642 (1998)

(strong form of local
preemption).
ME
ME. CONST.
art. VIII, Pt. 2, 1.
Imperio.
No.
ME. REV.
STAT. ANN. tit.
26, 661 to 672
(1988).
No.
MD
MD. CONST.
art. XI-A, 2 MD.
CONST. art. XI-E,
1, 2, 6. MD.
ANN. CODE art.
25A, 5 (2001).
Imperio.
No.
MD. CODE
ANN., LAB. &
EMPL. 3-401 to
428 (West 1999).
No.
MA
MASS.
CONST. amend.
art. II, 1, 2, 6,
7(5).
Legislative.
MASS. ANN.
LAWS ch. 151,
1-22 (LexisNexis
1999).
No.
MI
MICH.
CONST. art. VII,
22. MICH. COMP.
LAWS ANN.
117.4i(d) (West
1991). MICH.
COMP. LAWS
ANN. 117.4j(3)
(West 1991).
Legislative.
No.
MICH. COMP.
No. See MICH.
LAWS ANN. COMP. LAWS ANN.
408.381 to 408.398 408.394 (West 1999)
(West 1999).
(consonance clause).
MN
MINN.
CONST. art. XII
4. MINN. STAT.
ANN. 401.07
(West 2001).
Imperio.
No.
MINN. STAT.
No. But see MINN.
ANN. 177.21 to STAT. ANN. 177.34
177.44 (West
(West 1993) (savings
1993).
clause).
Yes, with adverse interpretations.
39 CLMJLSP 93
Page 24
MS
No constituCommon law,
tional provision.
statutory delegaSee MISS.
tion.
CONST. Art. IV,
80. Municipal
powers delegated
from MISS. CODE
ANN. 21-1-1 to
21-47-1 (2001).
See MISS. CODE
ANN. 21-17-5,
21-19-1(1),
21-19-15 (2001).
N/A.
MO
MO. CONST.
art. VI, 19.
No.
Legislative.
None.
N/A.
MO. ANN.
MO. ANN. STAT.
STAT.
67.1571 (West 2005)
290.500-530 (West (preempts minimum
2005).
wage, but not living
wage ordinances).
But see Missouri

Hotel & Motel Ass'n v.
City of St. Louis, 7
Wage & Hour Cas. 2d
(BNA) 218 (Mo. Cir.
Ct. July 18, 2001)
(holding 67.1571
unconstitutional).
MT
MONT.
CONST. art. XI,
4(1), 4(2), 6.
MONT. CODE
ANN.
7-1-101,-102,-106,
-111,-113 (2004).
Legislative.
Yes. MONT.
MONT. CODE
CODE ANN.
ANN. 39-3-401
7-1-111(2) denies to 39-3-409 (2004).
municipal power to
regulate minimum
wages.
No.
39 CLMJLSP 93
Page 25
NE
NEB. CONST.
art. XI, 2.
Imperio.
No.
NEB. REV.
No. But see NEB.
STAT. 48-1201 REV. STAT. 48-1208
to 48-1209 (2004). (2004) (savings clause).
NV
NEV. CONST.
art. VIII, 8. NEV.
REV. STAT.
267.120 (2005).
Imperio.
No.
NEV. REV.
STAT. 608.250
to 608.290 (2000,
2003 Supp.).
No.
NH
N.H. CONST.
Limited
Pt. 1, art XXXIX. imperio.
N.H. REV. STAT.
ANN. 49-B:1
(1991 & Supp.
2004), 49-B:8
(1991), 31:1 to
31:129 (1998 &
Supp. 2003).
No.
N.H. REV.
STAT. ANN.
279:1 to 279:29
(1999 & Supp.
2004).
No.
NJ
N.J. CONST.
40:42-4
art. IV, 7, par. 11. (West 1991),
N.J. STAT. ANN. 40:48-1, 40:48-2
(West 2005).
None--But broad
enumeration of
powers.
No.
N.J. STAT.
ANN.
34:11-56a to
34:11-56a30 (West
2000 & Supp.
2005)
NM
N.M. CONST.
art. X, 6: (D),
(E) N.M. STAT.
ANN. 3-17-1
(West 1999).
Yes.
N.M. STAT.
No. But see N.M.
ANN. 50-4-19 STAT. ANN. 50-4-29
to 50-4-309 (West (West 2000) (savings
2000).
clause).
Legislative.
No. But see N.J.

STAT. ANN.
34:11-56a28 (West
2000 & Supp 2005)
(savings clause).
39 CLMJLSP 93
Page 26
NY
N.Y. CONST.
Art. IX, 2(c),
3(c). N.Y. MUN.
HOME RULE
LAW 10
(McKinney 1994).
Legislative
over enumerated
subjects, including
wage regulation of
municipal workers
and contractors,
and police powers.
No.
N.Y. LAB.
LAW 650 to
665 (McKinney
2002).
NC
N.C. CONST.
art. VII, 1. N.C.
GEN. STAT.
160A-4,-11,-174
(2003).
None--commo
n law. But police
powers are delegated and get a
broad construction.
No.
N.C. GEN.
No. But see N.C.
STAT. 95-25.1 GEN. STAT.
to 95-25.5 (2003). 95-25.25 (2003) (clause
providing for liberal
construction for the
welfare of adult and
minor workers).
ND
N.D. CONST.
Strong legislaart. VII, 6. N.D. tive.
CENT. CODE
40-05.1-06 (1983).
No.
N.D. CENT.
CODE
34-06-01 to
34-06-20 (2004).
OH
OHIO CONST.
art. XVIII, 3.
Legislative.
No.
OHIO REV.
No. But see OHIO
CODE ANN.
REV. CODE ANN.
4111 (West 2001). 4111.11 (West 2001)
(savings clause).
OK
OKLA.
CONST. art.
XVIII, 2, 3.
Legislative.
No.
OKLA. STAT.
ANN. tit. 40,
197.1-199 (West
2005).
OR
OR. CONST.
art. XI, 2.
Legislative.
No.
OR. REV.
STAT.
653.010-.261
(2003).
No. But see

Wholesale Laundry Bd.
of Trade, Inc. v. City of
New York, 17 A.D.2d
327 (N.Y. App. Div.
1962) aff'd by 189
N.E.2d 623 (N.Y.
1963).
No.
No.
OR. REV. STAT.

653.017 (2003)
(preempts minimum
wage ordinances but
39 CLMJLSP 93
Page 27
allows living wage

ordinances).
PA
PA. CONST.
art. IX, 2. 53 PA.
STAT. ANN.
13131 (West
1998). 53 PA.
STAT. ANN.
13133 (West
1998). 53 PA.
CONS. STAT.
ANN. 2961
(West 1994). 53
PA. CONS. STAT.
ANN. 2962
(West 1994).
Legislative.
No.
43 PA. STAT.
No. But see 43 PA.
ANN. 333.101 STAT. ANN. 333.114
to 333.115 (West (West 1992). (repealing
1992).
prior minimum wage
act regulating wages by
job classification).
RI
R.I. CONST.
art. XIII, 1, 2.
Imperio.
No.
R.I. GEN.
No, but see R.I.
LAWS 28-12-1 GEN. LAWS
to 28-12-24 (2003). 28-12-21 (2003) (savings clause).
SC
S.C. CONST.
art. VIII, 9, 11,
14, 17. S.C. CODE
ANN. 5-7-30
(2004).
SD
TN
Mostly legislative, but with some

limits as to powers
over subjects of
statewide concern.
No.
S.D. CONST.
art. IX, 2.
Legislative.
No.
TENN.
CONST. art. XI,
Imperio.
No.
None.
S.D. CODIFIED LAWS

60-11-3 to 60-11-7
(2004).
None.
S.C. CODE ANN.

6-1-130 (2004)
(preempts minimum
wage, but not living
wage ordinances).
No.
N/A.
39 CLMJLSP 93
Page 28
9.
TX
TEX. CONST.
art. XI, 5. TEX.
LOC. GOV'T
CODE ANN.
51.001, 51.072
(Vernon 1999).
Legislative.
No.
TEX. LAB.
CODE ANN.
62.001 to 62.205
(Vernon 1996).
UT
UTAH
CONST. art. XI,
5.
Legislative.
No.
UTAH CODE
UTAH CODE
ANN.
ANN. 34-40-106
34-40-101 to
(2004) (preempts both
34-40-205 (2004). minimum wage and
living wage style
ordinances).
VT
No constitutional provisions.
Statutory powers
enumerated in VT.
STAT. ANN. tit.
24, 2001 to
2299k (1992). No
general police
power.
None.
N/A.
VT. STAT.
ANN. tit. 21,
381 to 396 (2003).
N/A.
VA
VA. CONST.
art. VII, 3. Enumeration of statutory powers in VA.
CODE ANN.
15.2-900 to
15.2-974 (2003).
No general police
power.
None.
N/A.
VA. CODE
ANN. 40.1-28.8
to 40.1-28.12
(2002).
N/A.
No.
39 CLMJLSP 93
Page 29
WA
WASH.
CONST. art. XI,
11.
Legislative.
No.
WASH. REV.
CODE ANN.
49.46.005 to
49.46.920 (West
2002).
No. But see WASH.

REV. CODE ANN.
49.46.120 (West 2002)
(by its own terms the
chapter is in addition
to and supplementary to
any other federal, state,
or local law or ordinance).
WV
W. VA.
CONST. art. VI,
39(a). W. VA.
CODE ANN.
8-1-17, 8-12-2(a)
(LexisNexis 2003).
Legislative.
No.
W. VA. CODE
No. But see W. VA.
ANN. 21-5C-1 CODE ANN.
to 21-5C-11 (Lex- 21-5C-10 (LexisNexis
isNexis 2002).
2002) (savings clause).
WI
WIS. CONST.
art. XI, 3(1) See
also WIS. STAT.
ANN. 66.0101
to 66.0143 (West
2003) (formation
of home rule charters), 66.0401 to
66.0435 (West
2003) (regulatory
powers under
home rule).
Legislative.
No.
WIS. STAT.
ANN. 104.01 to
104.12 (West
2002).
No.
[FNa1]. Articles Editor, COLUM. J.L. & SOC. PROBS., 2005-2006. In writing this Note, I owe many debts. Foremost, I thank
Paul Sonn, Staff Attorney at the Brennan Center for Justice, for the inspiration and opportunity to write on the topic, as well as
for providing consistently productive feedback. Professor Richard Briffault provided invaluable guidance on many previous
drafts, as did Anne Lee. Liz Vladeck led me in chants outside the home of a New York legislator: Five-fifteen is not enough!
Cinco quince no es suficiente! And, as always, my friends and family have inspired and sustained me. Despite these debts, I
take full responsibility for any poverty of insight or research.
[FN1]. ALAN MANNING, MONOPSONY IN MOTION 333-38 (2003) (attributing the increasing inequality among the
39 CLMJLSP 93
Page 30
bottom half of the distribution of U.S. wages from 1979 to 2000 to the crumbling value in real dollars of the applicable minimum wage).
[FN2]. U.S. DEP'T OF LABOR, MINIMUM WAGE LAWS IN THE STATES - JANUARY 1, 2005 (2004),
http://www.dol.gov/esa/minwage/america.htm.
[FN3]. Schedule B(1) - Fair Market Rents 2005 for Existing Housing, 69 Fed. Reg. 59,011, 59,018-19 (Oct. 1. 2004) (compare
housing costs in metropolitan Atlanta, Georgia with those in Lumpkin County, Georgia), available at
http://www.huduser.org/Datasets/FMR/FMR2005F/Final_FY2005_SCHEDULEB1.pdf (last visited Aug. 16, 2005).
[FN4]. Id. at 59,045 (compare housing costs in the county of New York, New York with those in Tompkins County, New
York).
[FN5]. The term living wage may, in one sense, refer to a method of determination based on wages adequate to support a
family, whereas the minimum wage, to modern ears, may connote something even stingier--i.e., those wages necessary to
keep the wageearner just above the brink of poverty. This Note, however, will use the terms in a more technical sense: living
wage ordinance herein refers to an ordinance that restricts coverage to businesses that contract with, or receive subsidies from,
the government, whereas minimum wage ordinance herein refers to those ordinances that are generally applicable, with
exceptions only for small businesses or other specialized categories of business. See Mark D. Brenner, The Economic Impact of
Living Wage Ordinances, in LIVING WAGE MOVEMENTS: GLOBAL PERSPECTIVES 191-95 (Deborah M. Figart ed.,
2004) (discussing differences in the wage rates and scope of coverage between minimum wage and living wage ordinances).
[FN6]. All but six states regulate minimum wages. The six that do not are Alabama, Arizona, Louisiana, Mississippi, South
Carolina, and Tennessee. See infra Appendix; see also U.S. DEP'T OF LABOR, supra note 3.
[FN7]. A note to advocates: the Appendix is based on the author's reading of the constitutional and statutory home rule delegations, as well as the statutory minimum wage law. A detailed consultation of the cases interpreting these provisions for every
state is beyond the scope of this Note. Therefore, advocates should use the Appendix primarily as a starting point, not as a
substitute for more thorough analysis of the legal framework operating in any particular state.
[FN8]. Adkins v. Children's Hosp., 261 U.S. 525 (1923).
[FN9]. WILLIS J. NORDLUND, THE QUEST FOR A LIVING WAGE 11-14 (1997) (describing three regulatory models: (a)
wage boards that set industry-specific wage floors, without enforcement mechanisms; (b) wage boards that set industry specific
wage floors tied to the cost of living rather than to industry needs, with enforcement powers; and (c) statutorily set flat-rates
applicable to all industries, with enforcement powers).
[FN10]. See Simpson v. O'Hara, 141 P. 158 (Or. 1914) (upholding constitutionality of Oregon's minimum wage law), aff'd by
an equally divided Court 243 U.S. 629 (1917), and Stettler v. O'Hara, 139 P. 743 (Or. 1914); Spokane Hotel Co. v. Younger,
194 P. 595 (Wash. 1920) (upholding Washington's minimum wage law and private right of recovery); Larsen v. Rice, 171 P.
1037 (Wash. 1918) (upholding Washington's minimum wage law on the authority of Simpson).
39 CLMJLSP 93
Page 31
[FN11]. Adkins, 261 U.S. 525. See also infra Part IV.B.3 for a discussion of the public/ private distinction and the development
of the constitutional jurisprudence with respect to economic regulations.
[FN12]. Donham v. West-Nelson Mfg. Co., 273 U.S. 657 (1927) (striking down an Arkansas minimum wage law for women);
Murphy v. Sardell, 269 U.S. 530 (1925) (striking down Arizona's minimum wage law for women); Folding Furniture Works,
Inc. v. Indus.
Comm'n, 300 F. 991 (D. Wis. 1924) (striking down Wisconsin's minimum wage law as applied to women based on Adkins, but
without reaching its applicability to children); Topeka Laundry Co. v. Court of Indus. Relations, 237 P. 1041 (Kan. 1925)
(striking down a Kansas minimum wage law on the authority of Adkins).
[FN13]. Stevenson v. St. Clair, 201 N.W. 629 (Minn. 1925) (striking down Minnesota minimum wage provisions as applied to
women on the authority of Adkins, but affirming such provisions as applied to children). Still working within a jurisprudence
that required an affirmative empirical demonstration of how a regulation promoted the health, safety, welfare or morals of its
intended beneficiaries, many cases from this period cited the newly adopted Nineteenth Amendment as support for why women
deserved less paternalistic treatment than courts had previously given them. No state regulated men's wages during this period.
[FN14]. BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL
REVOLUTION 45-105 (1998).
[FN15]. 300 U.S. 379 (1937).
[FN16]. CUSHMAN, supra note 14, at 105.
[FN17]. But cf. Nat'l League of Cities v. Usery, 426 U.S. 833 (1976) (finding extensions of the Fair Labor Standard Act's
coverage to state and local government employees violated state sovereign immunity), overruled by Garcia v. San Antonio
Metro. Transit Auth., 469 U.S. 528 (1985).
[FN18]. 29 U.S.C. 201-219 (2000).
[FN19]. 29 U.S.C. 206 (2000) (minimum wages); 207 (maximum hours); 212 (child labor).
[FN20]. 29 U.S.C. 206(a)(1) (2000).
[FN21]. Congress amended the minimum wage in 1949, 1955, 1961, 1966, 1974, 1977, 1989, and 1996. NORDLUND, supra
note 9, at 226-28 (but note that the amendments of 1989 and 1996 are not reflected in these tables). See Pub.L. No. 101-157,
103 Stat. 938 (1989); Pub.L. No. 104-188, 110 Stat. 1755 (1996).
[FN22]. In 1961, under the Kennedy administration, Congress extended FLSA to cover significant numbers of workers in the
retail, service, and construction industries. NORDLUND, supra note 10, at 105-06. In 1966, under the Johnson administration,
Congress further expanded coverage to public employees, hospitals, educational institutions, and laundries.
39 CLMJLSP 93
Page 32
[FN23]. 29 U.S.C. 206(g) (2000).

[FN24]. See OREN M. LEVIN-WALDMAN, THE CASE OF THE MINIMUM WAGE 122-23 (2001) (providing a table with
comparable information).
[FN25]. Id.
[FN26]. Id. at 123.
[FN27]. Incomes of minimum wage earners have also fallen relative to the average hourly wage since the 1950s. In the 1950s,
the minimum wage hovered at about 55% of the average hourly wage, where it held steady in the 1960s; in the 1970s, this
dropped slightly to about 45% of the average hourly wage; in the 1980s, it dropped further to around 37%, where it stayed in the
1990s, oscillating between 40% and 30% of the average hourly wage. ECONOMIC POLICY INSTITUTE, THE MINIMUM
WAGE
RELATIVE
TO
THE
AVERAGE
HOURLY
WAGE,
1973-2003,
http://www.epinet.org/issueguides/minwage/figure2.gif (last visited Aug. 16, 2005); LEVIN-WALDMAN, supra note 24, at
122-23.
[FN28]. The initial purpose behind state regulation of the minimum wage was to ensure coverage for employees whose work is
unrelated to interstate commerce.
[FN29]. Jeff Chapman, States Move on Minimum Wage, 195 EPI ISSUE BRIEF 1, 3-4 (June 11, 2003), available at http://
www.epinet.org/issuebriefs/ib195/ib195.pdf. Connecticut, however, did provide a minimum one penny higher than the federal
minimum in 1979.
[FN30]. These are Alaska, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Massachusetts, New York,
Oregon, Rhode Island, Vermont, Washington, and Wisconsin. See U.S. DEP'T OF LABOR, supra note 3.
[FN31]. ACORN, Living Wage Successes, http://livingwagecampaign.org/-- index.php?id=1958 (last visited Aug. 16, 2005).
[FN32]. See generally David B. Reynolds, The Living Wage Movement Mushrooms in the United States, in LIVING WAGE
MOVEMENTS 69 (Deborah M. Figart ed., 2004).
[FN33]. Regulations from the 1960s in New York City, New York and Baltimore, Maryland presaged the contemporary local
minimum wage laws. See Wholesale Laundry Bd. of Trade, Inc. v. City of New York, 17 A.D.2d 327 (N.Y. App. Div. 1962)
aff'd 189 N.E.2d 623 (N.Y. 1963) (state minimum wage law preempts local regulation); City of Baltimore v. Sitnick, 254 Md.
303 (1969) (upholding the municipal ordinance as a proper exercise of police powers, not preempted by the state law).
[FN34].
S.F.,
CAL.,
ADMIN.
CODE
12R.1
12R.13
http://www.amlegal.com/library/ca/sanfrancisco.shtml (last visited Aug. 16, 2005).
(2005),
available
at
[FN35]. BERKELEY, CAL., MUN. CODE 13.27.010 - 13.27.100 (2005), available at http://www.ci.berkeley.ca.us/bmc/
39 CLMJLSP 93
Page 33
(last visited Aug. 16, 2005). But see id. at 13.27.030(E) (generally applicable wage regulation applies only within the marina
zone).
[FN36].
NEW
ORLEANS,
LA,
CITY
CHARTER
9-501
9-507
(2005),
available
at
http://library7.municode.com/gateway.dll/LA/louisiana/319?f=templ
ates&fn=default.htm&npusername=10040&nppassword=MCC&npac_ credentialspresent =true&vid=default (last visited
Aug. 16, 2005). But see New Orleans Campaign for a Living Wage v. City of New Orleans, 825 So.2d 1098 (La. 2002) (finding
the minimum wage charter amendment preempted by state law).
[FN37].
SANTA
FE,
N.M.,
CITY
CODE
28-1
28-10
(2004),
available
at
http://68.15.49.6/santafe_nm/lpext.dll?f=templates&fn=site_main-j.htm&2.0 (last visited Aug. 16, 2005). See also New
Mexicans for Free Enterprise v. City of Santa Fe, No. D-0101-CV-2003-468, slip op. (D.N.M. June 24, 2004) (upholding the
ordinance).
[FN38]. D.C. CODE ANN. 32-1001 - 32-1015 (LexisNexis 2001).
[FN39]. MADISON, WIS., GEN. ORD. 3.45 (2005), available at http:// library10.municode.com/gateway.dll/1? f
=templates&fn=default.htm&vid=nextpage:500000&npusername=50000&nppassword=MCC&npac_ credentialspresent=true
(last visited Aug. 16, 2005).
[FN40]. See, e.g., SANTA FE, N.M., CITY CODE 28-1.5(B), supra note 37. Congress specifically contemplated a similar
indexing feature during the debates leading up to the 1949 FLSA amendments and again as part of the 1981 Minimum Wage
Study Commission; however, indexing never made it into the federal law. NORDLUND, supra note 9, at 74, 169.
[FN41]. Compare New Mexicans for Free Enterprise v. City of Santa Fe, No. D-0101-CV-2003-468, slip op. (D.N.M. June 24,
2004) (Santa Fe has sufficient authority to regulate wages and is not preempted) with New Orleans Campaign for a Living
Wage v. City of New Orleans, 825 So.2d 1098 (La. 2002) (state law preempts New Orleans from regulating wages).
[FN42]. See Hunter v. City of Pittsburg, 207 U.S. 161, 178 (1907) ( Municipal corporations are political subdivisions of the
state, created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them .
. . . The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be
exercised rests in the absolute discretion of the State.).
[FN43]. This Note focuses primarily on municipalities, although much of the analysis will apply straightforwardly to counties,
which may also be interested in regulating wages.
[FN44]. RICHARD BRIFFAULT & LAURIE REYNOLDS, STATE AND LOCAL GOVERNMENT 268-69 (West 6th ed.,
2004).
[FN45]. These classifications are merely ideal models or types of home rule powers. Any particular state may devolve a range
of powers somewhere between these models.
39 CLMJLSP 93
Page 34
[FN46]. This rule is named after Judge John F. Dillon of the Iowa Supreme Court, who authored the rule in his Commentaries
on the Law of Municipal Corporations shortly after the Civil War. See Merriam v. Moody's Executors, 25 Iowa 163, 170
(1868).
[FN47]. BRIFFAULT & REYNOLDS, supra note 44, at 266.
[FN48]. See infra Appendix. Although Connecticut, New Jersey, and North Carolina give their municipalities a broad range of
statutory powers, they still delegate powers by enumeration; Mississippi clearly is subject to Dillon's rule; and Vermont and
Virginia have something akin to it. But see BRIFFAULT & REYNOLDS, supra note 44, at 268 (characterizing forty-eight
states as providing a measure of home rule for at least some of their cities).
[FN49]. BRIFFAULT & REYNOLDS, supra note 44, at 266.
[FN50]. State v. Hutchinson, 624 P.2d 1116, 1119 (Utah 1981) (quoting Tooke, Construction and Operation of Municipal
Powers, 7 TEMPLE L.Q. 267, 273-74 (1933)).
[FN51]. CAL. LABOR CODE 1205(b) (West 2003). See also infra Appendix.
[FN52]. While few states have adopted Dillon's Rule for their major cities, many allow municipalities to adopt home rule
powers only after they reach a certain population threshold. Therefore, Dillon's Rule may prevent statutory cities--small cities
and towns in many states that lack home rule powers--from regulating wages. See BRIFFAULT & REYNOLDS, supra note 44,
at 269 ((I)n many states, home rule extends to only some cities (usually the more populous ones) and counties (usually the
more urbanized ones), not to all. For the remaining localities, Dillon's Rule may continue to shape the interpretation of local
powers.).
[FN53]. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 55 (George Lawrence, trans.; J.P. Mayer & Max
Lerner eds., Harper & Row 1966) (1835).
[FN54]. Richard Briffault, Our Localism: Part II--Localism and Legal Theory, 90 COLUM. L. REV. 346, 392-435 (describing
the participatory and efficiency arguments for localism, as well as their tensions).
[FN55]. MO. CONST. art. VI, 19; see also infra Appendix.
[FN56]. JEFFERSON FORDHAM, AMA'S MODEL CONSTITUTIONAL PROVISIONS FOR MUNICIPAL HOME RULE
(1953).
[FN57]. See BRIFFAULT & REYNOLDS, supra note 44, at 282-83; Terrance Sandalow, The Limits of Municipal Power
Under Home Rule: A Role for the Courts, 48 MINN. L. REV. 643, 661-65 (1964); City of New Orleans v. Bd. of Comm'rs of
the Orleans Levee Dist., 640 So. 2d 237 (La. 1994) (reviewing the experience of states that adopted the imperio model).
39 CLMJLSP 93
Page 35
[FN58]. CAL. CONST. art. XI, 5(a).

[FN59]. But see Sandalow, supra note 57, at 652 (observing that judicial limits on municipal legislation are rare in the absence
of state legislation in the same field).
[FN60]. The actual scope of immunity, however, may be quite small if courts broadly interpret the range of state concerns. See
BRIFFAULT & REYNOLDS, supra note 44, at 282. C.f., e.g., Jefferson v. State, 527 P.2d 37, 42 n. 26 (Alaska 1974) (discussing imperio homerule as composed of powers of a sword and of a shield, where the shield powers require a court's
determination of whether an exercise of municipal power is statewide or local in nature in order to determine whether the
municipal ordinance is immune from preemption, whereas the sword powers to initiate legislation may be inconsistent with
preemption-by-state-occupation-of-the-field).
[FN61]. See supra note 57.
[FN62]. See Sandalow, supra note 57, at 661-65; George D. Vaubel, Toward Principles of State Restraint upon the Exercise of
Municipal Power in Home Rule, 20 STETSON L. REV. 845, 867-69, 889-91 (1991).
[FN63]. See infra Appendix. These include Arizona, Arkansas, Colorado, Florida, Hawaii, Kansas, Maine, Maryland, Nebraska, Nevada, New Hampshire, Rhode Island, and Tennessee.
[FN64]. See FORDHAM, supra note 56. The American Municipal Association later became known as the National League of
Cities. The National Municipal League, a similar organization, proposed substantially similar provisions a few years later.
NATIONAL MUNICIPAL LEAGUE, MODEL STATE CONSTITUTION (6th ed. 1963).
[FN65]. N.M. CONST. art. X, 6(D), 6(E).
[FN66]. See infra Appendix.
[FN67]. FORDHAM, supra note 56, 6, cmt 3.
[FN68]. See, e.g., N.M. CONST. art. X, 6(D).
[FN69]. See generally BRIFFAULT & REYNOLDS, supra note 44, at 345-82.
[FN70]. See BRIFFAULT & REYNOLDS, supra note 44, at 361-65. Because most law on when and how state legislation
preempts municipal ordinances is judicially created, rather than grounded in constitutional or statutory text, it is beyond the
scope of this Note to provide a full account of how preemption works in any particular jurisdiction. More fruitfully, this section
discusses different forms of preemption regimes and how they relate to the policies behind different models of home rule.
[FN71]. LA. REV. STAT. ANN. 23:642(B) (1998). Colorado, Florida, Georgia, Louisiana, and Utah all expressly deny local
governments the power to enact local minimum wages.
39 CLMJLSP 93
Page 36
Oregon denies local governments the power to enact generally applicable local minimum wages, but expressly permits local
governments to adopt local living wage laws that are tied to city contracting and subsidies. See infra Appendix.
[FN72]. Goodell v. Humboldt County, 575 N.W.2d 486, 502-07 (Iowa 1998).
[FN73]. See, e.g., Modern Cigarette v. Town of Orange, 774 A.2d 969, 978 (2001); Goodell, 575 N.W.2d at 493; Amico's Inc.
v. Mattos, 789 A.2d 899, 907 (R.I. 2002).
[FN74]. E.g., Modern Cigarette, 774 A.2d at 977-78; Goodell, 575 N.W.2d at 500.
[FN75]. See, e.g., Amico's Inc., 789 A.2d at 907; accord Modern Cigarette, 774 A.2d at 978 (merely because a local ordinance,
enacted pursuant to the municipality's police power, provides higher standards than a statute on the same subject does not
render it necessarily inconsistent with the state law.); Goodell, 575 N.W.2d at 501 (When a state law merely sets a standard,
a local law setting a higher standard would not conflict with the state law . . . .); City of Cleveland Heights v. Woods, 669
N.E.2d 281, 282 (Ohio Ct. App. 2002).
[FN76]. See, e.g., ACLU of New Mexico v. City of Albuquerque, 128 N.M. 315 (1999).
[FN77]. See, e.g., City of Northglenn v. Ibarra, 62 P.3d 151 (Colo. 2003).
[FN78]. See, e.g., City of Northglenn, 62 P.3d at 155-56; Marran v. Baird, 635 A.2d 1174, 1178 (R.I. 1994); Town of East
Greenwich v. O'Neil, 617 A.2d 104 (R.I. 1992); Fraternal Order of Police, Colo. Lodge #27 v. City and County of Denver, 926
P.2d 582 (Colo. 1996).
[FN79]. Tocqueville recognized long ago that (o)f all forms of liberty, that of a local community, which is so hard to establish,
is the most prone to the encroachments of authority. TOCQUEVILLE, supra note 53, at 37.
[FN80]. See, e.g., N.C. GEN. STAT. 160A-174(b)(5) (2003); Modern Cigarette, 774 A.2d. at 977-78; School Comm. of
Town of York v. Town of York, 626 A.2d 935, 939 (Me. 1993); Bloom v. City of Worcester, 293 N.E.2d 268, 280-81 (Mass.
1973); Amico's Inc., 789 A.2d at 907.
[FN81]. Town of York, 626 A.2d at 941.
[FN83]. See, e.g., Municipality of Anchorage v. Repasky, 34 P.3d 302, 311 (Alaska 2001) (In general, for state law to preempt
local authority, it is not enough for state law to occupy the field. Rather, (i)f the legislature wishes to preempt an entire field,
(it) must so state. (quoting Jefferson v. State, 527 P.2d 37, 43 (Alaska 1974))); City of Ocala v. Nye, 608 So.2d 15, 17 (Fla.
1992) (implying, without deciding, that Florida does not recognize field preemption); Schillerstrom Homes v. City of Naperville, 762 N.E.2d 494, 499-500 (Ill. 2001) (statutory scheme must expressly declare exclusive state control over a subject in
order to preempt local regulation); Cincinnati Bell Tel. Co. v. City of Cincinnati, 693 N.E.2d 212, 218 (Ohio 1998) ((T)here is
no constitutional basis that supports the continued application of the doctrine of implied preemption.).
39 CLMJLSP 93
Page 37

[FN85]. See, e.g., Fraternal Order of Police, 926 P.2d 582.
[FN86]. Compare Chapman v. Luna, 678 P.2d 687 (N.M. 1984) (a statutory prohibition, in a legislative home rule state, on
local imposition of fees on motor vehicles preempts a local registration fee to finance a local motor vehicle inspection program)
with State v. Pascale, 134 A.2d 149, 152 (R.I. 1957) (local traffic ordinance, in an imperio home rule state, punishing any
refusal to comply with order of police officer was preempted by state statute punishing willful refusal to comply with police
order).
[FN87]. Goodell v. Humboldt County, 575 N.W.2d 486, 501 (Iowa 1998) (Any distinction between a local ordinance that is
inconsistent with state law and one that merely sets a higher standard or requirement is at best subtle.).
[FN88]. See BRIFFAULT & REYNOLDS, supra note 44, at 364 (discussing non-regulation versus permission).
[FN89]. State ex rel. Haynes v. Bonem, 845 P.2d 150, 157 (N.M. 1992) (interpreting the possibility for direct conflict narrowly
by allowing local governments to adopt eightmember commissions where state statute requires five-member commissions).
[FN90]. Paper Supply Co. v. City of Chicago, 317 N.E.2d 3, 13 (Ill. 1974) (responding to plaintiffs' nightmare scenario where
1356 local governments could harm business throughout the state with heterogeneous tax regulation).
[FN92]. In fact, duly enacted municipal ordinances often carry a presumption of validity and constitutionality, which means
that the challenger of the ordinance must persuade the court that an ordinance is constitutionally infirm. See, e.g., Meyer v.
Collins, 717 A.2d 771, 773 (Conn. App. Ct. 1998). This discussion, however, focuses primarily on defenders' substantive
arguments, rather than on their burdens of proof.
[FN93]. See Schedule B(1) - Fair Market Rents 2005 for Existing Housing, supra note 4, at 59,045.
[FN94]. COLO. CONST. art. XX, 6 (constitutional grant of imperio home rule power); COLO. REV. STAT. ANN.
8-6-101(3)(a) (West 2004) (express denial of local power to regulate wages); ARIZ. CONST. art. XIII, 1, 2 (constitutional
grant of imperio home rule power); ARIZ. REV. STAT. ANN. 23-362 (1995) (express denial of local power to regulate
wages).
[FN95]. But see Wholesale Laundry Bd. of Trade, Inc. v. City of New York, 17 A.D.2d 327, 330 (N.Y. App. Div. 1962) (The
local law forbids a hiring at a wage which the state law permits and so prohibits what the state law allows.), aff'd, 189 N.E.2d
623 (N.Y. 1963) (state minimum wage law preempts local regulation). New York has subsequently rejected this theory of state
standards as both floors and ceilings. People v. Cook, 34 N.Y.2d 100, 109 (1974) (rejecting the argument that a locality may
not enact a local law which prohibits conduct which is permitted by State law. This statement of the law is much too broad. If
39 CLMJLSP 93
Page 38
this were the rule, the power of local governments to regulate would be illusory.); accord, Jancyn Mfg. Corp. v. County of
Suffolk, 518 N.E.2d 903 (N.Y. 1987); New York State Club Ass'n, Inc. v. City of New York, 505 N.E.2d 915 (N.Y. 1987).
[FN96]. IOWA CODE ANN. 364.3(3) (West 1999) (A city may not set standards and requirements which are lower or less
stringent than those imposed by state law, but may set standards and requirements which are higher or more stringent than those
imposed by state law, unless a state law provides otherwise.) (emphasis added).
[FN97]. See, e.g., N.C. GEN. STAT. 95-25.1(b) (2003).
The public policy of this State is declared as follows: The wage levels of employees, hours of labor, payment of earned wages,
and the well-being of minors are subjects of concern requiring legislation to promote the general welfare of the people of the
State without jeopardizing the competitive position of North Carolina business and industry.
[FN98]. Id.
[FN99]. 29 U.S.C. 218(a) (2001).
[FN101]. E.g., CONN. GEN. STAT. ANN. 31-61 (West 2003).
[FN102]. E.g., City of Baltimore v. Sitnick, 255 A.2d 376, 378 (Md. 1969) (Baltimore City, as a municipal corporation, ha(s)
the authority under its police powers to establish by ordinance minimum wage regulations.) (emphasis added, citations
omitted).
[FN103]. See, e.g., ALASKA CONST. art. X, 11 (local governments can exercise all legislative powers not prohibited by
law or by charter) (emphasis added); FLA. STAT. ANN.
166.021 (West 2005) (home rule governments may exercise any power for municipal purposes, except when expressly
prohibited by law) (emphasis added); ILL. CONST. art. VII, 6(i) (Home rule units may exercise and perform concurrently
with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically
limit the concurrent exercise or specifically declare the State's exercise to be exclusive.) (emphasis added); N.M. CONST. art.
X, 6(D) (A municipality which adopts a (home rule) charter may exercise all legislative powers and perform all functions not
expressly denied by general law or charter.) (emphasis added).
[FN104]. See, e.g., Rubey v. City of Fairbanks, 456 P.2d 470, 475 (Alaska 1968) ((T)here would have to be some additional
factor from which the intent of the legislature to prohibit local regulation in this area could be reasonably inferred.); Goodell v.
Humboldt County, 575 N.W.2d 486, 493 (Iowa 1998) (when analyzing implied preemption by field occupation, Iowa law
requires some legislative expression of an intent to preempt home rule authority, or some legislative statement of the state's
transcendent interest in regulating the area in a uniform manner.).
[FN105]. E.g., City of Council Bluffs v. Cain, 342 N.W.2d 810, 812 (Iowa 1983) ((U)nder home rule, a city has the power to
enact an ordinance on a matter which is also the subject of statute if the ordinance and statute can be harmonized and reconciled.).
39 CLMJLSP 93
Page 39
[FN106]. These are Georgia, Louisiana, Oregon (with respect to generally applicable minimum wages, but not living wages
tied to city contracting), and Utah. Arizona, Colorado, Florida, and South Carolina also specifically deny local governments the
power to enact minimum wage laws. Because these states have a different home rule regime, the relevant analysis is different.
Moreover, Missouri attempted to deny such power to local governments, but its denial was found unconstitutional. See infra
Appendix.
[FN107]. These are Delaware, Georgia, Indiana (by case law, especially strong), Iowa, Louisiana, Massachusetts (by case law,
especially strong), Montana (especially strong), and New Mexico. See infra Appendix.
[FN109]. Id.
[FN110]. 825 So. 2d 1098 (La. 2002).
[FN111]. LA. REV. STAT. ANN. 23:642 (1998). The text is instructive due to its strong ideological position, unsupported by
economic evidence (see discussion infra Part IV.C for a review of such evidence):
(2) The legislature further finds that wages comprise the most significant expense of operating a business. It also recognizes that
neither potential employees nor business patrons are likely to restrict themselves to employment opportunities or goods and
services providers in any particular parish or municipality. Consequently, local variation in legally required minimum wage
rates would threaten many businesses with a loss of employees to areas which require a higher minimum wage rate and many
other businesses with the loss of patrons to areas which allow for a lower wage rate. The net effect of this situation would be
detrimental to the business environment of the state and to the citizens, businesses, and governments of the various local jurisdictions as well as the local labor market.(3) The legislature concludes from these findings that, in order for a business to
remain competitive and yet to attract and retain the highest possible caliber of employees, and thereby to remain sound, an
enterprise must work in a uniform environment with respect to minimum wage rates. The net impact of local variation in
mandated wages would be economic instability and decline and a decrease in the standard of living for the citizens of the state.
Consequently, decisions regarding minimum wage policy must be made by the state so that consistency in the wage market is
preserved.(B) Therefore, pursuant to the police powers ultimately reserved to the state by Article VI, Section 9 of the Constitution of Louisiana, no local governmental subdivision shall establish a minimum wage rate which a private employer would be
required to pay employees.
[FN112]. New Orleans Campaign for a Living Wage, 825 So. 2d at 1108.
[FN113]. No. D-0101-CV-2003-469, slip op. at 6 (D.N.M. June 24, 2004) (interpreting the minimum wage ordinance as incident to an exercise of an independent municipal power, namely the statutory police power).
[FN114]. Gary T. Schwartz, The Logic of Home Rule and the Private Law Exception, 20 UCLA L. REV. 671, 687 (1973). See
also, FORDHAM, supra note 56, 6 cmt. 5.
One aspect of home rule which has not been given adequate thought is the matter of city enactment of private law. Traditionally, the states have not given local units any independent legislative power of this character for obvious reasons. Few would
want a system under which the law of contracts and of property varied from city to city. At the same time, the exercise of
municipal powers has a more or less direct bearing upon private interests and relationships. This is true, for example, of tax
39 CLMJLSP 93
Page 40
measures, regulatory measures and various utility and service activities. It is the theory of the draft that a proper balance can be
achieved by enabling cities to enact private law only as an incident to the exercise of some independent municipal power.
[FN115]. Schwartz, supra note 114, at 688. See also Richard Briffault, What About the Ism? Normative and Formal
Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1343 (1994).
[FN116]. Adkins v. Children's Hosp., 261 U.S. 525 (1923).
[FN117]. Sandalow, supra note 57, at 678-79.
[FN118]. Public law is often, but not always, far easier to learn of than is private law. Speed limits, for example, clearly satisfy
Schwartz's notion of the obligations that private individuals owe to the government, or the public at large. See Schwartz, supra
note 114, at 688. Drivers traveling from county to county exert little effort in learning the applicable law; they simply read the
signs that the government has posted. If, however, comparative negligence governed in one county while contributory negligence applied in the next, drivers would likely have to turn to the casebooks to discover the liabilities they faced in each county.
[FN119].
See,
e.g.,
S.F.,
CAL.,
ADMIN.
CODE
12R-5(a),
available
at
http://www.amlegal.com/library/ca/sanfrancisco.shtml (last visited Aug. 16, 2005); MADISON, WI.
GEN.
ORD.
3.45(24),
available
at
http://library10.municode.com/gateway.dll/1?
f=templates&fn=default.htm&vid=nextpage:500000&npusername=50000&nppassword=MCC&npac_
credentialspresent=true (last visited Aug. 16, 2005).
[FN120]. See, e.g., Richard Briffault, supra note 115, at 1343; Schwartz, supra note 114, at 750-56; Sandalow, supra note 57, at
679-80.
[FN121]. See generally CUSHMAN, supra note 14, at 45-105; see also Munn v. Illinois, 94 U.S. 113, 126 (1877) (upholding
the first law regulating prices because the price of grain is cloaked with a use in which the public has an interest); Holden v.
Hardy, 169 U.S. 366, 397 (1898) (upholding maximum hours regulation because the state's police power includes the power to
regulate health, especially where private parties have unequal bargaining power); Atkins v. Kansas, 191 U.S. 207 (1903)
(upholding a state statute that regulated working hours of public employees, including municipal employees); Lochner v. New
York, 198 U.S. 45 (1905) (striking down a state statute regulating the working hours of bakers as violative of the Fourteenth
Amendment's due process clause because the state did not convince the Court that there was a close connection between the
regulation and the pursuit of health); Muller v. Oregon, 208 U.S. 412 (1907) (upholding maximum hours regulation for women
without a particularized showing that such regulation furthers women's health and safety); Bunting v. Oregon, 243 U.S. 426,
438 (1917) (upholding a state statute regulating maximum hours through overtime payments without a particularized showing
that such regulation furthers workers' or the public's health; indeed, granting broad deference to legislative judgment); Wilson
v. New, 243 U.S. 332 (1917) (upholding Congressional regulation of wages and hours of railroad workers because the
avoidance of labor disputes is a sufficient public interest to support the regulation); Block v. Hirsh, 256 U.S. 135, 155 (1921)
(upholding a D.C. rent control ordinance in the recognition that circumstances can clothe an otherwise private transaction with
a public interest); Adkins v. Children's Hosp., 261 U.S. 525, 554, 557 (1923) (striking down D.C.'s minimum wage law for
women because wage regulation touches the heart of the contract and accounts for the needs of only one party to the contract); Charles Wolff Packing Co. v. Court of Indus. Relations of Kan., 267 U.S. 552 (1925) (allowing public regulation of
private businesses when those businesses are clothed with a public interest by (a) carrying on a public grant of authority, (b)
operating in traditionally public categories, or (c) developing a public interest through circumstance); Nebbia v. New York, 291
39 CLMJLSP 93
Page 41
U.S. 502 (1934) (upholding price regulation of health in recognition of the interpenetration of private rights and public interests
which allows legislative intervention in the public interest so long as no constitutional right is violated); Morehead v. New York
ex rel.
Tipaldo, 298 U.S. 587 (1936) (uttering the last, dying breath of substantive due process review of minimum wage regulation).
[FN122]. 300 U.S. 379, 396-99 (1937).
[FN123]. Id. at 399.
[FN124]. Nebbia v. New York, 291 U.S. 502, 525 (1934).
[FN126]. Minimum wage regulations help equalize bargaining power between workers and employers, preventing workers
from becoming the ready victims of those who would take advantage of their necessitous circumstances. West Coast Hotel
Co., 300 U.S. at 398. They encourage fair competition among businesses, preventing companies from profiting from exploitative labor practices. Id. They promote the health and well being of the workers. Id. at 399. Moreover, in practical terms, they
reduce the need for social services for underpaid workers, thereby shifting the costs of unfair labor practices from taxpayers to
unconscionable employers. Id.
[FN127]. 260 N.E.2d 200 (Mass. 1970).
[FN128]. Id. at 205-06.
[FN130]. See CHR General, Inc. v. City of Newton, 439 N.E.2d 788 (Mass. 1982); Bannerman v. City of Fall River, 461
N.E.2d 793 (Mass. 1984); City of Bloomington v. Chuckney, 331 N.E.2d 780, 783 (Ind. Ct. App. 1975) (rent control ordinances
so directly affect the landlord-tenant relationship, ... they cannot be upheld as an incident to the exercise of an independent
municipal power). But cf. City of Evanston v. Create, 421 N.E.2d 196 (Ill. 1981) (rejecting the argument that local rent control
law is an unconstitutional interference with private law); Birkenfeld v. City of Berkeley, 550 P.2d 1001 (Cal. 1976) (same);
Sims v. Besaw's Caf, 997 P.2d 201 (Or. 2000) (same, for antidiscrimination law). Note, though, that Illinois, California, and
Oregon do not have constitutional private law exceptions to their home rule regime, which means that these cases do not directly refute the line of cases in Massachusetts and Indiana.
[FN131]. Munn v. Illinois, 94 U.S. 113 (1877).
[FN132]. Bunting v. Oregon, 243 U.S. 426 (1917).
[FN133]. Nebbia v. New York, 291 U.S. 502 (1934).
[FN134]. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
39 CLMJLSP 93
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[FN136]. Munn settled this principle in 1877 with respect to prices, explicitly dismissing this very argument. 94 U.S. at 133 (If
they did not wish to submit themselves to (price regulation), they should not have clothed the public with an interest in their
concerns.). See also id. at 134 (We know that this is a power which may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts.). Block reaffirmed
the principle with respect to rents in 1921. Block v. Hirsh, 256 U.S. 135, 157 (1921) (But if the public interest be established
the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settled since
Munn v. Illinois). Nebbia generalized it in 1934. 291 U.S. at 492 (The thought seems nevertheless to have persisted that there
is something peculiarly sacrosanct about the price one may charge for what he makes or sells, and that, however able to regulate
other elements of manufacture or trade, with incidental effect upon price, the state is incapable of directly controlling the price
itself. This view was negatived many years ago. Munn v. Illinois, 94 U.S. 113.). And West Coast Hotel finally applied it to
wages in 1937. 300 U.S. at 399 (The legislature had the right to consider that its minimum wage requirements would be an
important aid in carrying out its policy of protection.).
[FN137]. Of course, there may be constitutional limits to economic regulation, such as those imposed by the Fifth Amendment's Takings Clause. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
[FN138]. This argument does not vitiate the private law exception. While the private law exception may impose no constraint
on public economic regulation, there are many private relationships that are not primarily economic. Consider, for example,
how substantive due process has enjoyed a rebirth protecting social relations from government intrusion without bringing
Lochner's ghost back to life. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003). It is the longstanding judicial recognition that
private economic relationships can lead to public problems that subjects those relationships (at least in their economic aspects)
to government regulation, thereby shielding them from the private law exception.
Public intervention into family law, for example, may require a different analysis.
[FN139]. FORDHAM, supra note 56, 6.
[FN140]. Marshall House v. Rent Review and Grievance Board of Brookline, 260 N.E.2d 200, 205 (Mass. 1970).
[FN141]. Sandalow, supra note 57, at 676-77 ((T)he most likely construction of the model provisions is that private law may
be enacted only if it is in aid of some municipal policy or program which is expressed, at least in part, by means other than the
regulation of purely civil relationships.).
[FN142]. FORDHAM, supra note 57, 6, cmt. 5 (At the same time, the exercise of municipal powers has a more or less direct
bearing upon private interests and relationships. This is true, for example, of tax measures, regulatory measures and various
utility and service activities. It is the theory of the draft that a proper balance can be achieved by enabling cities to enact private
law only as an incident to the exercise of some independent municipal power.).
[FN143]. These are Florida, Georgia, Louisiana, Oregon, South Carolina, and Utah. But note that Florida, Oregon, and South
Carolina expressly allow living wage ordinances even while forbidding minimum wage ordinances. See infra Appendix.
39 CLMJLSP 93
Page 43

[FN145]. DAVID CARD & ALAN B. KRUEGER, MYTH AND MEASUREMENT: THE NEW ECONOMICS OF THE
MINIMUM WAGE 315-17 (1995).
[FN146]. For example, Governor George Pataki claimed that
raising the minimum wage unilaterally at the state level would align New York with the minority of states that have placed
themselves at a competitive disadvantage in creating and retaining jobs. Moreover, raising New York's minimum wage independent of Congressional action could place us at a distinct competitive disadvantage with our neighbors in New Jersey and
Pennsylvania, where the minimum wage is at the federal level of $5.15 per hour. Simply put, jobs lost in New York as the result
of a raise in the minimum wage would be the gain of employers in New Jersey and Pennsylvania.Governor George Pataki, Veto
Message on Assembly Bill Number 11760-A, July 29, 2004 (on file with the Columbia Journal of Law and Social Problems).
[FN147]. See generally MANNING, supra note 1.
[FN148]. A formal treatment of the competitive model is beyond the scope of this Note. For such treatment, see CARD &
KRUEGER, supra note 145, at 355-69 (including competitive models that relax assumptions about homogenous labor, that
account for differences between sectors that are covered or not covered by the law, and that distinguish between long-run and
short-run effects). See also WALTER NICHOLSON, MICROECONOMIC THEORY: BASIC PRINCIPLES AND EXTENSIONS 505-07 (3d ed. 1985) (applying the standard competitive model to minimum wage laws, predicting that increasing
wages above the competitive market equilibrium will result in unemployment).
[FN149]. A minimum wage is binding when it is legally mandatory and higher in value than the equilibrium wage given by
the competitive market.
[FN150]. By well-defined, the theory requires preferences to be complete (between any two goods, an individual prefers one
to the other, or equally) and transitive (if A is preferred to B, and B to C, then A is preferred to C). NICHOLSON, supra note
148, at 78-79.
[FN151]. Id. at 83.
[FN152]. Bruce E. Kaufman, The Evolution of Thought on the Competitive Nature of Labor Markets, in LABOR ECONOMICS AND INDUSTRIAL RELATIONS: MARKETS AND INSTITUTIONS 175 (Clark Kerr and Paul D. Staudohar
eds., 1994); George Stigler, Information in the Labor Market, 70(2) JOURNAL OF POLITICAL ECONOMY 94 (1962).
[FN153]. NICHOLSON, supra note 148, at 351-54. See also Charles Brown, Comment, Review Symposium on Myth and
Measurement, 48 INDUS. & LAB. REL. REV. 828 (1995) and Finis Welch, Comment, Review Symposium on Myth and
Measurement, 48 INDUS. & LAB. REL. REV. 842, 848 (1995) (I direct (Card and Krueger's) attention to the mono in
monopsony, criticizing Card and Krueger for using a model of the low-wage labor market that allows employers of low-wage
labor to have market power when there are many such employers in the restaurant market, thereby assuming that such employers have no source of power other than numerical domination).
39 CLMJLSP 93
Page 44
[FN154]. NICHOLSON, supra note 148, at 348.

[FN155]. Id. at 349.
[FN156]. See Donald R. Deere, Kevin M. Murphy, & Finis R. Welch, Examining the Evidence on Minimum Wages and
Employment, in THE EFFECTS OF THE MINIMUM WAGE ON EMPLOYMENT 26 (Marvin H. Kosters ed., 1996) (Beginning about forty years ago there was a revolution in labor economics; what was once labor became economics.).
[FN157]. Bruce E. Kaufman, Labor Markets and Employment Regulation: The View of the Old Institutionalists, in GOVERNMENT REGULATION OF THE EMPLOYMENT RELATIONSHIP 171 (Bruce E. Kaufman ed., IRRA Series 1997)
(The contention of the Chicago School, however, is that these imperfections, while very real, are nevertheless relatively
unimportant in the sense that the actual outcomes of labor markets, such as the pattern of wage differentials among occupations
or employment levels among firms, correspond fairly closely to the levels that would be predicted by the perfectly competitive
model . . . .).
[FN158]. CARD & KRUEGER, supra note 145, at 370-71.
[FN159]. Id. at 396-97 ((T)he minimum wage provides a simple and direct test of the kind of theoretical reasoning that
economists routinely apply to other, more complicated phenomena, and to many policy questions. Irrespective of the exact
parameters determining supply and demand behavior, the standard model makes the unambiguous prediction that an increase in
the minimum wage will lead to a reduction in employment.).
[FN160]. Bruce E. Kaufman, Labor Markets and Employment Regulation: The View of the Old Institutionalists, in GOVERNMENT REGULATION OF THE EMPLOYMENT RELATIONSHIP 11, 20 (Bruce E. Kaufman ed., 1997); RICHARD
A. LESTER, ECONOMICS OF LABOR 93-538 (1947).
[FN161]. Kaufman, supra note 159, at 22.
[FN162]. For example, workers require enough compensation to keep them healthy and vigorous so that they can perform
productively the next day. Wages that were inadequate to provide sufficient food, health care, or shelter would impose costs on
the workers while the employer received the full benefit of their labor. (While Marx may have characterized all wage labor as
exploitive, labor whose wages are insufficient even to reproduce the means of production warrants that critique all the more so.)
Similarly, if a particular job required skilled work, workers' wages rarely accounted for the costs of education and training
acquired prior to taking up that job.
[FN163]. Id. at 22-24.
[FN164]. Id. at 29-31.
[FN165]. Id. at 37-39.
39 CLMJLSP 93
Page 45
[FN166]. Id. at 38. Responding to the neoclassical critique that labor standards have unintended consequences, the
institutionalists argue
that keeping marginal, low-productivity jobs is myopic social policy. The better approach is to accept that companies will
reduce employment in marginal jobs, use private and social forms of investment (e.g., education and training programs) to raise
the productivity of the majority of the displaced workers who are employable, and accept that a minority of the displaced are
unemployable at reasonable wages and must be supported through state welfare programs. In effect, the institutionalists see
raising the plane of competition as a method to promote continuous quality improvement in the nation's work force.Id. (citations omitted).
[FN167]. Clark Kerr, The Social Economics Revisionists: The Real World Study of Labor Markets and Institutions, in
LABOR ECONOMICS AND INDUSTRIAL RELATIONS 66 (Clark Kerr and Paul D. Staudohar eds., 1994).
[FN168]. Id. at 77-81.
[FN169]. Gregory K. Dow, The New Institutional Economics and Employment Regulation, in GOVERNMENT REGULATION OF THE EMPLOYMENT RELATIONSHIP 57-90 (Bruce E. Kaufman ed., 1997).
[FN170]. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).
[FN171]. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (interring, after long last, substantive due process for economic
policy).
[FN172]. Charles Brown et al, The Effect of the Minimum Wage on Employment and Unemployment, 20 J. ECON. LITERATURE 487 (1982).
[FN173]. Id. at 508. Time-series studies track a single location over time in order to determine the effects that follow minimum
wage increases.
[FN174]. Marvin H. Kosters, Introduction and Overview, in THE EFFECTS OF THE MINIMUM WAGE ON EMPLOYMENT 1 (Marvin H. Kosters ed., 1996) (The most obvious direct effect of increasing the minimum wage is to raise the incomes of low-wage workers with jobs . . .
.).
[FN175]. Brown et al., supra note 172, at 524 (The direction of the effect on adult employment is uncertain in the empirical
work, as in the theory.).
[FN176]. Id. at 505 (Implicitly or explicitly, studies finding disemployment effects but little or no unemployment impacts are
finding labor-force withdrawal in response to minimum wage increases.).
[FN177]. LEVIN-WALDMAN, supra note 24, at 163-87 (arguing for a shift in the political debate from the currently perceived
trade-off between poverty alleviation and full employment to the conception of the minimum wage as part of a larger package
of macroeconomic stabilization and social justice).
39 CLMJLSP 93
Page 46
[FN178]. CARD & KRUEGER, supra note 145. A full and careful study of this book will reward the interested reader. It is rich
with insights on empirical methodology for economic studies, and meticulous in its analysis of its own and prior research. A full
review of the book, however, is beyond the scope of this Note.
[FN179]. Id. at 1-19, 386-99.
[FN180]. Id. at 178-239.
[FN181]. Id. at 240-75.
[FN182]. Paul Osterman, Comment, Review Symposium on Myth and Measurement, in 48(4) INDUS. & LAB. REL. REV.
828, 839 (1995) (David Card and Alan B. Krueger . . . have written a book that represents a phenomenal amount of careful and
honest research and that will be a classic in the minimum wage literature and also in the broader field of empirical labor economics. At the same time, this book is a damning indictment of how labor economics has been practiced over the past three
decades . . . .).
[FN183]. See, e.g., Donald R. Deere, et al., Examining the Evidence on Minimum Wages and Employment, in THE EFFECTS
OF THE MINIMUM WAGE ON EMPLOYMENT (Marvin H. Kosters ed., 1996); David Neumark & William Wascher,
Reconciling the Evidence on Employment Effects of Minimum Wages--A Review of our Findings, in THE EFFECTS OF THE
MINIMUM WAGE ON EMPLOYMENT 55 (Marvin H. Kosters ed., 1996); John Kennan, The Elusive Effects of the Minimum Wage, 33(4) J. ECON. LITERATURE 1950 (1995); David Neumark & William Wascher, Minimum Wages and Employment: A Case Study of the Fast-Food Industry in New Jersey and Pennsylvania, 90(5) AM. ECON. REV. 1362 (2000).
[FN184]. See, e.g., Paul Osterman, Comment, Review Symposium on Myth and Measurement, in 48(4) INDUS. & LAB. REL.
REV. 828, 839 (1995); Richard Freeman, Will a 10% . . . 50% . . . 100% Increase in the Minimum Wage Do? Review Symposium on Myth and Measurement, 48(4) INDUS. & LAB. REL. REV. 828, 830 (1995); V. Bhaskar & Ted To, Minimum
Wages for Ronald McDonald Monopsonies: A Theory of Monopsonistic Competition, 109 ECON. J. 190 (1999) (developing a
monopsony model for the low-wage labor market); Richard Dickens et al., The Effects of Minimum Wages on Employment:
Theory and Evidence from Britain, 17(1) J. LABOR ECONOMICS 1 (1999) (same); David Card & Alan B. Krueger, Minimum Wages and Employment: A Case Study of the Fast-Food Industry in New Jersey and Pennsylvania: Reply, 90(5) AMER.
ECON. REV. 1397 (2000); MANNING, supra note 1, at 338 (characterizing Card and Krueger as coming off better in their
debate with Neumark and Wascher); Brenner, supra note 5, at 188.
[FN185]. Freeman, supra note 184, at 833.
[FN186]. Telephone Interview with Mark Brenner, Assistant Research Professor at the University of Masssachusetts's Political
Economy Research Institute (Mar. 11, 2005). See also MANNING, supra note 1, at 338-347 (providing a detailed application
of the monopsony model of the low-wage labor market to the effect of minimum wage increases).
[FN187]. Additionally, most economists agree that substantial increases would reduce employment. They do not, however,
39 CLMJLSP 93
Page 47
agree on what constitutes a substantial increase.

[FN188]. MANNING, supra note 1, at 347 ((A) well-chosen minimum wage is not beyond the reach of good policy. The
impact of minimum wages on employment should primarily be an empirical issue and the results of the empirical studies should
be used to inform policy.).
[FN189]. See discussion supra Parts IV.D and IV.E.
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Attorney General's Response To Luke Malek On Minimum Wage

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STATE OF IDAHO

OFFICE OF THE ATTORNEY GENERAL

May 13, 2015

The Honorable Luke Malek

P.O. Box 83720, Boise, Idaho 83720-0010

Assistant Chief Deputy

Columbia Journal of Law and Social Problems

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

*113 2. Imperio Preemption Tests

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

immune from government regulation.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

IMUM WAGE REGULATIONS

Dillon's Rule (3 states): MS, VT, VA

*These states have unusually strong versions of the private

and Home Rule

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

None. Common law with

None. But see

ARIZ. REV. STAT.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

No constituWeak legislational provisions. tive.

No. But see 820

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

LA. REV. STAT.

art. VI, 5(A),

ANN. 23:642 (1998)

Yes, with adverse interpretations.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

But see Missouri

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

No. But see N.J.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

No. But see

OR. REV. STAT.

allows living wage

Mostly legislative, but with some

S.D. CODIFIED LAWS

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

S.C. CODE ANN.

2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

No. But see WASH.