New Article: Life After Janus

New Article: Aaron Tang, Life After Janus, 119 Colum. L. Rev. 677 (2019). Abstract below:

The axe has finally fallen. In Janus v. American Federation of State, County, & Municipal Employees, Council 31, the Supreme Court struck down the major source of financial security enjoyed by public-sector unions, which represent nearly half of the nation’s fifteen million union members. Countless press stories, law review articles, and amicus briefs have criticized and defended this outcome.

This Article has a different aim. Rather than relitigating Janus, the questions it asks are instead forward looking: What comes next? Is there life for public-sector unions after Janus? And if so, what might it look like?

In engaging these questions, this Article has three goals. First, it pushes back on the narrative that public unions have no choice now but to struggle on within a national right-to-work environment. That is certainly one possibility, but pro-labor states have available a range of legislative responses that may soften Janus’s blow or even negate it altogether.

One response that has generated vigorous debate in policy circles would be for pro-labor states to require public employers to reimburse unions for their bargaining-related costs directly. The standard objection is that this will undercut unions’ ability to advocate for workers. The Article’s second goal is to confront this objection head-on, with an argument that draws on an unlikely source: an analogy between public unions and public defenders. As it turns out, America’s woeful experience with indigent criminal defense teaches some powerful lessons about how not to fund entities whose purpose is to contest the government’s narrow self-interest. But it also suggests funding approaches that would raise no independence concerns at all.

That leads to the Article’s final objective: to propose model legislation for state lawmakers to implement direct reimbursement of unions. The proposal is revenue neutral for public employers and unions, and it is wealth enhancing for workers in light of nuances in the federal income tax code. Readers interested in the nuts and bolts of the proposed legislation may wish to skip the first three parts of this Article, which make the case for why reimbursement is desirable, and start at Part IV. For convenience, a model bill is included in the Appendix.

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