Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design

Article by jide o. nzelibe and matthew c. stephenson :: This Article explores how the separation of powers affects voters’ electoral strategies, and how this interaction influences the performance of different institutional arrangements. We show that when one political agent, such as the President, acts unilaterally, voters are likely to respond asymmetrically to policy successes and failures in order to offset the risk that the President may be biased or “captured” by special interest groups. When political agents act in concert — such as when the President seeks congressional authorization for a policy initiative — voters prefer a more refined strategy, with less acute asymmetries between political rewards and punishments.
READ MORE | DOWNLOAD PDF | January 2010

Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing

Article by benjamin i. sachs :: The proposed Employee Free Choice Act (EFCA) has led to fierce debate over how best to ensure employees a choice on the question of unionization. The debate goes to the core of our federal system of labor law. Each of the potential legislative designs under consideration — including both “card check” and “rapid elections” — aims to enhance employee choice by minimizing or eliminating managerial involvement in the unionization process. The central question raised by EFCA, therefore, is whether enabling employees to limit or avoid managerial intervention in union campaigns is an appropriate goal for federal law. This Article answers this foundational question in the affirmative.
READ MORE | DOWNLOAD PDF | January 2010

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Trespass-Copyright Parallels and the Harm-Benefit Distinction

Wendy J. Gordon :: Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs should be required to prove foreseeability in order to make out a copyright claim. In this response, Professor Wendy Gordon suggests some new reasons why the tort of copyright infringement should be reformulated to abandon the trespass-to-land model, and explores some of the merits and shortcomings of Balganesh’s own version of the revised tort.

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January 2010

ARTICLES


Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design
Jide O. Nzelibe and Matthew C. Stephenson

Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing
Benjamin I. Sachs

NOTE


Central Bank and Intellectual Property

RECENT CASES


Constitutional Law — Eighth Amendment — Eastern District of California Holds that Prisoner Release Is Necessary To Remedy Unconstitutional California Prison Conditions — Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK JFM P, 2009 WL 2430820 (E.D. Cal. Aug. 4, 2009).

Criminal Law — Sentencing Guidelines — Seventh Circuit Holds that Involuntary Manslaughter Is Not a Crime of Violence for Sentencing Guidelines' Recidivism Enhancement. — United States v. Woods, 576 F.3d 400 (7th Cir. 2009).

Federal Statutes — Alien Tort Statute — Second Circuit Looks Beyond Complaint To Find State Action Requirement Satisfied. — Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009).

Criminal Law — Supervised Release — Third Circuit Approves Decade-Long Internet Ban for Sex Offender — United States v. Thielemann, 575 F.3d 265 (3d Cir. 2009).

First Amendment — Defamation Law — First Circuit Applies Libel Law that Does Not Allow Truth as a Defense in Cases of "Actual Malice." — Noonan v. Staples, Inc., 556 F.3d 20, reh’g denied, 561 F.3d 4 (1st Cir. 2009).

Federal Government Litigation — Equal Access to Justice Act — Fourth Circuit Holds that Attorney's Fees Are Payable to Claimant and Are Eligible for Administrative Offset. — Stephens ex rel. R.E. v. Astrue, 565 F.3d 131 (4th Cir. 2009).

Constitutional Law — Equal Protection — New York Court of Appeals Holds that State May Restrict Legal Alien Access to Disability Benefits. — Khrapunskiy v. Doar, 909 N.E.2d 70 (N.Y. 2009).