In this Issue Brief, Professor James Brudney of The Ohio State University Moritz College of Law
examines a new approach to union organizing that increasingly serves as an alternative to the current dominant paradigm under the National Labor Relations Act (NLRA), which is elections supervised by the National Labor Relations Board (NLRB). Professor Brudney describes a competing process that has emerged in which unions and employers commit to a non-adversarial procedure for determining whether employees want union representation. This non-adversarial procedure, which involves neutrality agreements and card check recognition (also referred to as "majority sign-up"), is becoming the principal strategy pursued by many labor unions and represents a major development in labor-management relations. The Issue Brief describes the rise of neutrality agreements and card check verification/majority sign-up and addresses whether such procedures should modify or replace reliance on NLRB-supervised elections. Professor Brudney closely examines the business community’s critique of this new framework and explores concerns about displacing the elections paradigm. He concludes by suggesting that neutrality agreements and card check arrangements are a credible alternative model for promoting employee free choice and that the paradigm assessment process provides an opportunity for frank discussion on how to improve worker conditions and labor-management relations.

Clinical Professor and Director of the Sexuality and Gender Law Clinic at Columbia Law School, Suzanne B. Goldberg examines the movement for marriage rights for same-sex couples, sketching the legal landscape related to advances in marriage equality. She summarizes the current status of state laws in this context, noting that since Massachusetts has allowed same-sex couples to marry, the debate has shifted to why lesbian and gay couples may marry in some jurisdictions, but not others. Goldberg deflects critics of equality with a discussion of the substantial weaknesses pervading their arguments. She ultimately concludes that, “although the cultural debate may remain fervent for some time, the legal arguments being advanced to justify excluding same-sex couples from marriage have little logical or factual force.” She explores the strength of the case for marriage equality, recalling that the right to marry has long been recognized as a fundamental right and noting the discrimination implicit in its limitation on the basis of sex or sexual orientation. She predicts further progress and that, “as more courts and legislatures move to equalize marriage rights in the near future, they, like the Supreme Judicial Court of Massachusetts in Goodridge, ultimately will be celebrated as another important step in realizing our nation’s commitment to equal justice under law.” For those seeking to understand the current state of this civil rights issue and the tenor and substance of the legal rhetoric, her analysis is a valuable resource.

The most widely used voting system in the Unites States, plurality voting, allows for a candidate that the majority opposes to be elected. While perhaps the most notable example of this occurred in the Florida presidential election in 2000, this situation happens not only on the federal level but in state and local elections as well. In this paper, David Cobb, Patrick Barrett and Caleb Kleppner advance an alternative to plurality voting that has been adopted by a number of localities across America. Ranked-choice voting, also known as instant runoff voting or IRV, allows voters to rank candidates in order of choice. If a candidate receives a majority of first choices, that candidate wins; if not, the rankings are used to conduct a series of runoffs until one candidate receives a majority. If a voter’s favorite candidate is eliminated in the runoffs, her vote counts for her next-most preferred candidate. Cobb, Barrett and Kleppner argue that ranked-choice voting presents a unique opportunity to improve our democratic structure by diminishing negative campaigning, improving voter choice, promoting greater discussion of the issues, eliminating the need for costly runoff elections and, ultimately, increasing the political power of all voters.