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Janus and the Problem with Alleging Lochnerism

Published May 4th, 2018 -

Janus, the Court’s case about public sector agency fees that will be decided this term, is a case that could be framed in two ways. On the one hand, Janus is a case about compelled political speech: the government, by imposin... More »

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Will Masterpiece Cakeshop and Janus Create a First Amendment Right to Strike for Teachers?

Published April 5th, 2018 -

Sometime in the next few weeks, the Supreme Court will issue its decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, one of the most closely watched cases of this Term.  In that case, Jack Phillips, the co-owner of the Masterpiece Cakeshop, argues that the State of Colorado violated his First Amendment rights when it required him to stop refusing to sell wedding cakes or any othe... More »

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Will the Court Consider the Facts in Janus?

Published February 28th, 2018 -

Mark Janus’s lawyers are desperate to have the Court decide Janus v. AFSCME without considering any facts.  Janus is an Illinois state employee, who is represented by AFSCME Council 31.  Like all other employees in his bargaining unit, he is required to pay fair share fees to the union to cover the costs of providing representation.  Janus wants to Court to rule that these fees are unconstitutiona... More »

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Coverage After the Janus Oral Argument

Published February 28th, 2018 -

The Supreme Court heard oral argument on Monday in Janus.  Analyses report that, as expected, there were pointed questions for AFSCME and Illinois by Justices Alito and Kennedy; the four liberal justices took every opportunity to highlight the potential effects of overruling Abood on collective bargaining and the ability of governments to manage their workforces.  Justice Gorsuch was silent.  Ther... More »

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Janus Oral Argument Transcript

Published February 26th, 2018 -

The Supreme Court has posted the transcript of this morning’s oral argument in Janus.  Notably, Justice Gorsuch, expected to be the deciding vote, did not speak during the argument.  We’ll have more coverage of the oral argument later this week. More »

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Using History to See the Glass Part Full in Janus v. AFSCME

Published February 21st, 2018 -

Janus v. AFSCME will soon decide the constitutional fate of fair-share fees for public sector unions. These fees support unions’ collective bargaining work on behalf of employees they are legally required to represent but who are not union members. Most prognosticators expect the Supreme Court to hand the National Right to Work Legal Defense Foundation (NRTWLDF) a win on its claim that such fees v... More »

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Janus Should Lose, and the Justices Know It

Published January 31st, 2018 -

Most of the coverage of Janus v. AFSCME, like this recent piece in USA Today, simply (and perhaps correctly) assumes that the five Republican appointees on the Supreme Court will use the case to overturn Abood v. Detroit Board of Education, the 1977 case upholding fair share fees for public sector workers.  But, now that the briefs have been filed, it is more clear than ever that those five Justic... More »

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Janus Amicus: Economists & Law Professors

Published January 30th, 2018 -

A group of over two dozen economists and law and economics professors filed an amicus in Janus in support of the respondents.  The brief argues that “decades if not centuries of economic theory and empirical evidence” establish that many who pay agency fees are not union objectors but free riders. The brief draws first on Mancur Olson’s work on the rationality of free riders: As ... More »

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