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Chicago-Kent College of Law




This essay focuses on this hurried, even panicked response to Janus in Massachusetts and evaluates the likely outcome that encouraging a public union to treat member employees in one way and non-member employees in a distinctly less generous way will have for employees and the unions. I begin, in Part II, by noting (and explaining) the first and most apparent oddity in this story: why is an employer - i.e. the state - rushing to help its putative, arms-length bargaining partners? In Massachusetts, there are many different public-sector unions. School teachers, 13 firefighters,14 clerical workers, 15 state and local police,16 and many others17 are all represented. What would motivate the state to want to protect union finances which might be jeopardized by the Janus decision?

Part III examines the specific proposals and concludes that either state or federal constitutional claims may prevent implementation of the legislative proposals. I also note that these proposals cry out for easy comparison to the legislative reactions of numerous southern state legislatures following the Court's decisions in Brown v. Board of Education18 and subsequent civil rights decisions and reek of a worrying kind of resistance to the Court's authority at the local level.19 Finally, in

Part IV I suggest that, if implemented, Janus holds great promise for re-setting the relationship between public-sector unions and state legislators that has become very worrying and tremendously expensive for taxpayers. When Abood was decided in 1977 almost no one20 anticipated the growth of public-sector unions and their outsize influence on state and local politics. Public unions, like their private sector counterparts, play an important role in the regulation of a large part of the American workplace. The corrosive dynamic that has developed between the unions and the legislators/employers has, however, contributed significantly to the bankruptcy of more than one American municipality in recent years,21 and threatens the financial health of more than a few states.22

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