Exaggerating the Effects of Janus: A Reply to Professors Baude and Volokh

Harvard Law Review Forum, Vol. 132, p.42, 2018, Forthcoming

UC Berkeley Public Law Research Paper

17 Pages Posted: 5 Nov 2018

See all articles by Erwin Chemerinsky

Erwin Chemerinsky

University of California, Berkeley - School of Law

Catherine Fisk

University of California, Berkeley - School of Law

Date Written: November 5, 2018

Abstract

In Janus v. AFSCME Council 31, the Supreme Court held public employers can no longer require employees to pay fair share fees, i.e., the employees' fair share of the costs unions incur in negotiating and administering labor contracts on the employees' behalf. This essay responds to an article by William Baude and Eugene Volokh, who argue that unions are likely retroactively liable for the agency fees that union-represented workers previously paid. We explain that public employee unions, as private membership organizations, are not state actors liable under 42 U.S.C. ยง 1983.We then show that even if unions were found to be acting under color of law for purposes of section 1983, they would be entitled to qualified immunity as a defense because negotiating for fair share fees did not violate the constitution at the time unions negotiated fair share fee agreements and received fees. At the very least, unions are entitled to the separate defense of good faith immunity available to private actors who are sued under section 1983 for conduct undertaken in good faith in collaboration with government actors. Finally, we show that unions are not liable on state law theories. Qualified immunity is a defense only to claims for damages under federal law, and good faith immunity has likewise been applied only to claims for damages. For that reason, plaintiffs in the post-Janus fee recovery litigation have alleged state law claims and styled them as equitable. Some states (e.g., California) have eliminated such liability through legislation. Even in states that have not enacted such laws, however, we show that well-settled equitable principles foreclose liability. Finally, this essay responds to Baude and Volokh's argument that Janus endangers other mandatory fees imposed by the government, such as bar dues and public university student activity fees.

Keywords: labor, free speech

Suggested Citation

Chemerinsky, Erwin and Fisk, Catherine L., Exaggerating the Effects of Janus: A Reply to Professors Baude and Volokh (November 5, 2018). Harvard Law Review Forum, Vol. 132, p.42, 2018, Forthcoming; UC Berkeley Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3278963

Erwin Chemerinsky

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

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/

Catherine L. Fisk (Contact Author)

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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