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An Ominous Denial of Certiorari

Published November 9th, 2017 -

Last week the Supreme Court passed up an opportunity to resolve a hotly disputed aspect of employment arbitration law: Whether judges or arbitrators should decide whether class (or collective) arbitration is available when an arbitration agreement is silent on... More »

Janus and Gerrymandering

Published October 6th, 2017 -

Two cases before the Supreme Court this Term will determine the extent to which political parties can entrench themselves in office.  The most obvious of these cases is Gill v. Whitford, which involves the constitutional permissibility of partisan gerrymanderi... More »

Janus, Agency Fees and the First Amendment

Published October 5th, 2017 -

In light of the Court’s grant of cert. in Janus v. AFSCME, I’m posting my new draft article on the subject. The article, Agency Fees and the First Amendment, 131 Harv. L. Rev. (forthcoming Feb. 2018), makes two related arguments, both of which aim ... More »

Janus and the Private Sector

Published September 29th, 2017 -

Maddy’s excellent wrap-up of yesterday’s Janus news includes a clip from Slate’s piece “Solidarity’s End.”  There, Mark Joseph Stern provides a very useful synopsis of agency fees law, but he also suggests that a Janus decis... More »

Coverage on Janus Cert. Grant

Published September 29th, 2017 -

The Supreme Court decided yesterday to hear Janus v. AFSCME.  The Court seems poised to hold that agency-fee agreements for public sector workers are unconstitutional.  Since the order, reports and commentaries have analyzed Janus‘s threat to public sect... More »

Supreme Court Grants cert in Janus

Published September 28th, 2017 -

The Supreme Court will hear Janus v. AFSCME and revisit the constitutional status of agency fee agreements in the public sector.  We will provide extensive coverage of the case over the coming months. More »

The (Other) Problem in Murphy Oil

Published September 28th, 2017 -

Sharon and I have a piece up on Quartz today that highlights an argument in the Government’s Murphy Oil brief. To us, it looks like the Trump Administration is laying the groundwork to curtail protection for concerted activity outside the union organizin... More »

Will the Supreme Court Ignore Pleading Rules in Janus?

Published September 7th, 2017 -

Many Court watchers think it is a foregone conclusion that the Supreme Court will grant the cert petition in Janus v. AFSCME, and then overturn the forty-year old decision in Abood v. Detroit Board of Education. While I’m not willing to bet against that, it’s ... More »

Gorsuch’s Judicial Approach and Workplace Protection

Published February 7th, 2017 -

When Judge Neil Gorsuch accepted his nomination to the Supreme Court, he professed modesty about his role on the Court, if he is confirmed.  He proclaimed that it is the role of judges to “apply not alter the work of the people’s representatives.”  But, unfort... More »