Toward Politically Stable NLRB Lawmaking: Rulemaking vs. Adjudication

26 Pages Posted: 19 Jul 2017

Date Written: May 14, 2015

Abstract

For the last several decades, there have been two constants with respect to the National Labor Relations Board. First, the modern Board has been notoriously reluctant to use its rulemaking authority; until recently, it had made only one significant substantive rule via the notice-and-comment process. Second, commentators — academics, lawyers, judges, and politicians — have issued a steady stream of calls for the Board to make law via rulemaking rather than through adjudications, arguing for the rulemaking process on both pragmatic and normative grounds. In recent years, however, the first of these has changed: the Board has engaged in two significant rulemaking processes. Each of these processes was both time intensive and politically and judicially fraught, calling into question whether the Board can achieve the process benefits of rulemaking in the current contentious political environment. This Symposium Essay explores the extent to which the Obama Board has been able to achieve the purported benefits of rulemaking, and therefore whether the benefits of making labor law through the rulemaking process exceed the costs, especially where the Board could alternatively make law via adjudication.

Keywords: NLRB, Rulemaking, Adjudication

Suggested Citation

Garden, Charlotte, Toward Politically Stable NLRB Lawmaking: Rulemaking vs. Adjudication (May 14, 2015). Emory Law Journal, Vol. 64, 2015, Available at SSRN: https://ssrn.com/abstract=3002806

Charlotte Garden (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA 98122-1090
United States

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