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2017 U. Chi. Legal F. 513 (2017)
The Right to Work and the Right to Strike

handle is hein.journals/uchclf2017 and id is 519 raw text is: 

     The   Right to Work and the Right to Strike

                           Laura  Weinribt

    This term, the Supreme  Court will consider Janus v. AFSCME,  the
newest  installment in an antilabor campaign  on behalf of a constitu-
tionally protected right to work.' Drawing on recent business-friendly
First Amendment   decisions, opponents of organized labor contend that
fair-share agency fee agreements, which  require non-members   of a
union to pay their proportionate share of collective bargaining and con-
tract administration expenses,  can no longer weather  constitutional
scrutiny.2 These advocates argue  that the extent to which employees
within a bargaining unit are required to contribute to the costs incurred
on their behalf by a labor organization designated to represent them
should be deferred neither to agreements between  unions and employ-
ers nor to the legislative process. Rather, they urge the Court to prohibit
any such payment  as a matter of constitutional law.
    Whatever   their policy preferences, commentators  have regarded
the new  judicial openness  to economically inflected free expression
claims of the kind proposed in Janus v. AFSCME   as a departure from,
or at least a significant extension of, traditional First Amendment prin-
ciples.3 By contrast, this essay demonstrates that advocates articulated
related arguments   as early as  the 1930s,  when  the modern   First
Amendment took   shape. Moreover, although  they did not yet prevail in
court, such arguments helped to garner broad-based support for the Su-
preme  Court's speech-protective turn at a time when liberals and labor
groups were deeply suspicious of court-centered constitutionalism.4 Yet
to the extent they were  credited at all, antiunion First Amendment

   t Professor of Law at the University of Chicago Law School. I thank Kate Andrias, Alex
Gourevitch, and Sophia Lee for helpful comments. The essay benefited from a rich discussion with
participants at The University of Chicago Legal Forum Symposium. I am grateful for support from
the Karl R. Janitzky Memorial Fund.
   ' On the history of the term right to work and contestation over its meaning, see SOPHIA Z.
   2 See, e.g., Harris v. Quinn, 134 S. Ct. 2618, 2626 (2014).
     For an overview of recent developments involving labor law and the First Amendment, see
infra Part I.
   4 Labor and liberal antipathy toward judicial review is discussed in Part II.


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