Source: Aaron Tang, Fred O. Smith, Harvard Law Review, Vol. 132 no. 2, November 2018
From the abstract:
Here is a short summary of the right-to-work movement’s legal strategy in the aftermath of its victory in Janus v. AFSCME: If you can’t kick a man when he’s down, when can you kick him? For within weeks of Janus’s pronouncement that the First Amendment forbids public sector unions to collect agency fees from objecting employees, right-to-work groups filed a flood of class action lawsuits seeking the refund of millions of dollars’ worth of fees that were paid in the years before Janus was even decided, when such fees were indisputably lawful. Commentators have observed that these retroactive refund suits threaten to bankrupt unions around the nation.
In Compelled Subsidies and the First Amendment, Professors William Baude and Eugene Volokh argue that “Janus makes it likely” that public sector unions will indeed be liable under 42 U.S.C. § 1983 for refunds of money they collected in years before Janus was even issued. We think otherwise, and this Response explains why.
We start in Part I by presenting a vision of the world as it would exist if Baude and Volokh are right. It turns out that imposing financial liability on public sector unions for conduct that was perfectly lawful when it took place (because both state law and judicial precedent authorized the unions to collect fair-share fees) is a kind of maneuver that cannot be neatly confined to the context of union fee refunds.
In Part II, we explain why this unsavory state of affairs is hardly necessary. In fact, the law requires otherwise. In particular, we describe three legal arguments that should stop the union-refund suits from getting off the ground: careful application of the doctrine of civil retroactivity; defenses that were available against the most closely analogous tort at common law, including that unions acted in good faith reliance on existing law; and ordinary principles of class action certification.