Wednesday, November 7, 2018
Erwin Chemerinsky & Catherine Fisk (both Berkeley) have posted on SSRN their essay (132 Harv. L. Rev. Forum 42, (2018)) Exaggerating the Effects of Janus: A Reply to Professors Baude and Volokh. The Baude/Volokh article is an apologia to the multiple cases filed post-Janus, ostensibly by public-sector former union dues-payers but in reality financed by employer-friendly organizations trying to break public-sector unions, to apply Janus retroactively. Here's an excerpt from the abstract of the Chemerinsky/Fisk article:
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. § 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.