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Belmont University College of Law




Many scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. 17 A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As 18 Is and others 19 have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also been well documented. 20

This paper seeks to turn the focus from a now well-recognized problem toward the Supreme Court's recent decision in Janus v. American Federation of State, County, and Municipal Employees21 and to consider changes we might expect to see in the short and medium term. The Court's conclusion-that its forty-year-old decision in Abood v. Detriot Board of Education22 should be overturned on First Amendment grounds-did not come as much of a surprise. 23 Agency fees, the Court held, are inconsistent with the First Amendment in so far as they compel speech in a manner that cannot survive "exacting scrutiny. 24 Whether or not Janus and its view of agency fees is compatible with the Court's own constitutional jurisprudence is not a subject about which an employee-benefits lawyer is qualified or eager to offer comment. The benefits perspective may be useful, though, in evaluating the likelihood of reforming some of the worst salary and postemployment excesses now common in parts of the public sector.

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