Harvard Law School
In this Article, Professors Harper and Lupu argue that a model of "principled democracy" can systematize the now-disjointed body of labor law that imposes upon labor unions a duty of fair representation (DFR). The authors derive the framework for this model from the normative principle at the core of equal protection theory - that decisionmakers must accord "equal respect" to all within their jurisdiction. To transform equal protection doctrine into standards for the DFR, the authors strip away the institutional components of equal protection doctrine that are appropriate for judicial review of decisions made by public officials but inapplicable to the review of decisions made by exclusive bargaining representatives. The resulting mode of judicial analysis focuses largely on the union decisionmaker's intent, unlike "minimum representation" theories, which focus on the outcome of union decisions and constrict allocation of union resources in ways that weaken the power of unions to bargain effectively. After applying their model to some hard DFR cases, Professors Harper and Lupu conclude that the equal protection norm is superior to those proposed by minimum representation theorists and should be the exclusive source of content for the DFR.
Michael C. Harper & Ira C. Lupu,
Fair Representation as Equal Protection
Harvard Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1622