• About
  • Contact
  • Staff

Law & Liberty

A Project of Liberty Fund

  • Home
  • Blog
  • Liberty Law Forum
  • Podcasts
  • Book Reviews

November 26, 2013|agency shops, California, CIR, collective bargaining, First Amendment, jurisprudence, Knox v. SEIU, labor law, Labor Unions, New Deal

Don’t Pay No Union Dues

by Michael S. Greve|1 Comment

Here’s a case worth watching: this past April, the Center for Individual Rights (lead attorney Michael Rosman) and Jones Day (Michael Carvin) filed a First Amendment challenge to California’s “agency shops” for public school teachers. (An “agency shop” means that non-union members must still pay a fee to the union for activities related to collective bargaining.) Plaintiffs are teachers who have about had it with the defendant unions. The State of California will likely join the case on the defendants’ side. A recent blog on the case is here; a copy of the complaint here.

This baby ought to move fast: as the plaintiffs readily acknowledge, extant law is against them, and only the Supreme Court can fix that. Justice Alito’s opinion for the Court in Knox v. SEIU strongly suggested that the Court is willing to revisit the precedents. This lawsuit says “Thank you, Justice Alito. Invitation accepted.”

The jurisprudential issue here is a striking discontinuity in First Amendment law. Labor relations involve a lot of protected speech, laced with political content—by employers, union bosses, and (as here) workers with different opinions. Still, the New Dealers thought, you want to regulate this stuff on a comprehensive basis. To prevent the First Amendment from getting in the way, the post-New Deal Court put this stuff into a separate conceptual box called “labor law,” where ordinary protections for political speech and against compelled speech don’t apply. Over the decades, though, First Amendment doctrines have become much more protective, to the point where the conflict with the made-for-labor-regulation First Amendment is glaring.

If the Supreme Court were to align its labor cases with the First Amendment, that would be very big, and very good.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

About the Author

The Physics of Party Government
Hans Kelsen

Recent Popular Posts

  • Popular
  • Today Week Month All
  • Academic Freedom Won't Survive Carnival Act Universities April 25, 2018
  • Trump's Travel Ban and the Constitution April 24, 2018
  • Constitutional Amendment as a Path to Avoiding Robed Masters April 24, 2018
  • Founding Financial Father April 23, 2018
  • Pope Francis's Mess April 24, 2018
Ajax spinner

Related Posts

Related

Comments

  1. Kevin R. Hardwick says

    November 28, 2013 at 7:53 pm

    “Third boxcar, midnight train;
    Destination . . . Bangor, Maine.”

    The snippet from the song works well enough, but the rest of the lyrics not so much. So in the end, I don’t think the title works. Spot on post though, otherwise, so I guess this is a cavil.

    It does show our age though, when we quote from Roger Miller lyrics!

    Reply

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Book Reviews

The Ford Restoration

by Kirk Emmert

Occupying the White House in unfavorable circumstances can make a President fall back on his best friend: the U.S. Constitution.

Read More

John C. Calhoun, Madisonian Manqué

by Thomas W. Merrill

His institutional innovations were geared toward preserving slavery.

Read More

Podcasts

The Solid Ground of Mere Civility: A Conversation with Teresa Bejan

A discussion with Teresa M. Bejan

Teresa Bejan discusses with us how early modern debates over religious toleration are an example of how we can disagree well.

Read More

Leading a Worthy Life in a Scattered Time: A Conversation with Leon Kass

A discussion with Leon Kass

Leon Kass discusses Leading a Worthy Life.

Read More

Eric Voegelin Studies: A Conversation with Charles Embry

A discussion with Charles Embry

What did “Don’t immanentize the eschaton!” really mean? An intro podcast on the formidable mind of Eric Voegelin.

Read More

Republican Virtue, Interrupted: A Conversation with Frank Buckley

A discussion with F.H. Buckley

The real conflict in our politics centers on reforming massive levels of public corruption.

Read More

Recent Posts

  • Academic Freedom Won’t Survive Carnival Act Universities

    Public institutions of supposedly liberal learning, which are increasingly alienating mainstream Americans, have no entitlement to public support.
    by Greg Weiner

  • Constitutional Amendment as a Path to Avoiding Robed Masters

    Tocqueville gives us good reasons to think that constitutional amendment is the best path to avoiding judicial supremacy.
    by James R. Rogers

  • Rethinking U.S. Nuclear Strategy

    Defending the entire free world requires a robust nuclear posture.
    by Matthew Kroenig

  • Pope Francis’s Mess

    Pope Francis has succeeded in making a mess for his Church.
    by Paul Seaton

  • Trump’s Travel Ban and the Constitution

    If the Supreme Court were to accept the plaintiffs' logic in Trump v. Hawaii, the judicial branch will gain new powers over defense policy.
    by Thomas Ascik

Blogroll

  • Acton PowerBlog
  • Cafe Hayek
  • Cato@Liberty
  • Claremont
  • Congress Shall Make No Law
  • EconLog
  • Fed Soc Blog
  • First Things
  • Hoover
  • ISI First Principles Journal
  • Legal Theory Blog
  • Marginal Revolution
  • Pacific Legal Liberty Blog
  • Point of Law
  • Power Line
  • Professor Bainbridge
  • Ricochet
  • Right Reason
  • Spengler
  • The American
  • The Beacon Blog
  • The Foundry
  • The Originalism Blog
  • The Public Discourse
  • University Bookman
  • Via Meadia
  • Volokh

Archives

  • All Posts & Publications
  • Book Reviews
  • Liberty Forum
  • Liberty Law Blog
  • Liberty Law Talk

About

Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

  • Home
  • About
  • Staff
  • Contact
  • Archive

Apple App Store
Google Play Store

© 2018 Liberty Fund, Inc.

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
No thanks