In a recent article, published in the Mississippi Law Journal, I argue that the NLRB is legally required to follow Rule 56 in its summary judgment procedures. The fact that it does not might merit a closer look by the Supreme Court, and this practice certainly does not deserve the deference it currently enjoys. 

We learned in a notable concurrence in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local 194 that Justices Thomas and Gorsuch are ready to reconsider the Court’s long-running, policy-based, textually untethered hyper-deference to the National Labor Relations Board’s discretionary pre-emption of state laws. Maybe the Court should first end judicial deference to the NLRB’s longer-running, policy-based, textually rebellious refusal to follow the Federal Rules of Civil Procedure, to the extent practicable, in NLRB unfair labor practice proceedings.

Read the article here.

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