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109 Geo. L.J. Online 1 (2020-2021)

handle is hein.journals/gljon109 and id is 1 raw text is: The End of Mandatory State Bars? LESLIE C. LEVIN* The country's thirty-one mandatory state bar associations are fac- ing an existential threat following the U.S. Supreme Court's decision in Janus v. ACSME, 138 S. Ct. 2448 (2018). In Janus, the Court considered the constitutionality of compelling public employees to pay agency fees to a labor union. In the process, the Court effectively upended the reasoning of earlier Supreme Court precedent that enabled mandatory state bars to com- pel bar dues payments from objecting lawyers and expend dues to fund tra- ditional bar functions. Mandatory state bars which function both as regu- lators and as traditional bar associations are now defending themselves against claims in several states that compelled bar dues payments violate lawyers' First Amendment rights. This Essay considers whether these com- pelled payments are likely to withstand constitutional scrutiny post-Janus. It focuses on the constitutional analysis outlined in Janus, with emphasis on the question of whether the states' interest in lawyer regulation and improv- ing the quality of legal services can be achieved through alternative means that are significantly less restrictive of lawyers ' associationalfreedom than compelled bar dues payments. To answer this question, the Essay compares the activities of the country's mandatory and voluntary state bar associa- tions along several dimensions. The comparison reveals that states with mandatory bars are unlikely to be able to demonstrate that the states' in- terests cannot be achieved through significantly less restrictive means. While this result would be a loss for the legal profession, there could be benefits for the public. INTRODUCTION The country's mandatory state bars are facing an existential threat. Mandatory (or unified) bars-to which lawyers are required to pay dues and belong as a condition of bar licensure-are the most common form of state bar organization in the United States. These bars work to advance law- yers' interests while also performing some regulatory functions. For almost one hundred years, they have withstood attacks on their constitutionality, their spending, and their advocacy.1 The United States Supreme Court has * Joel Barlow Professor of Law, University of Connecticut School of Law. © 2020, Leslie C. Levin. I thank Eugene Volokh and Steven Kaplan for comments on an earlier draft of this Essay. I am also grateful to Maryanne Daly-Doran, Tanya Johnson, Adam Mackie, and Anne Rajotte for research assistance. 1 They have also endured almost universal criticism from commentators. See, e.g., Ralph H. Brock, Giving Texas Lawyers Their Dues: The State Bar's Liability Under Hudson and Kellerfor Political and IdeologicalActivities, 28 ST. MARY'S L.J. 47, 49 n.5 (1996) (citing critical sources); Theodore J. Schneyer, The Incoherence of the Unified Bar Concept:

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