After Janus

67 Pages Posted: 12 Sep 2018

See all articles by Martin H. Malin

Martin H. Malin

Chicago-Kent College of Law - Illinois Institute of Technology

Catherine Fisk

University of California, Berkeley - School of Law

Date Written: September 6, 2018

Abstract

The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public sector labor law post-Janus, examines the variety of legislative responses, and proposes a path forward.

Janus makes it difficult to address the collective action problem facing all large groups. Although it is in the interest of every member of a group to engage in collective action to provide common goods, it is also in the each individual’s interest to let others incur the costs of doing so. The Janus Court misstated the nature of the collective action problem when it said the problem was free-riding on union-negotiated benefits. The problem is that, without some way to require all who benefit to share the costs, unions will not negotiate effectively for the benefits in the first place, so there will be no common goods to free ride on.

This Article explains public sector unions’ apparently surprising reluctance to respond to the collective action problem exacerbated by Janus in the way that some scholars and a number of legislatures have proposed. Most proposals and enacted legislation continue union financial solvency in the short-term but sacrifice the fundamental nature of unions as membership organizations governed by and for workers. Some adopt some form of members-only representation, thus abandoning the principles of majority and exclusive representation.

Suggested Citation

Malin, Martin H. and Fisk, Catherine L., After Janus (September 6, 2018). California Law Review, Forthcoming; UC Berkeley Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3245522

Martin H. Malin (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

Catherine L. Fisk

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
(510) 642-2098 (Phone)

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