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George Washington University Law School




Part I of this Article explains in more technical detail the effects of the present system of judicial review of Board certification decisions and how that system developed. Part II argues that this review should be sharply curtailed, suggesting that unless a court is able to rule that the Board has rendered a certification decision for an improper motive, it should reconsider that decision only to the extent it involves a constitutional issue, a narrow jurisdictional issue, or one of a few bounded technical issues. Such a curtailment of review should be embraced by all who remain sympathetic to the original goals of the Act - those who believe that collective bargaining can be beneficial to employees and the economy generally and who believe that the freedom of employees to select, as well as reject, collective bargaining should be protected effectively. Finally, Part III explains why sharply curtailing judicial review is consistent with a proper constitutional balancing of governmental power.

Although its exclusive focus is the reformation of one aspect of American labor law, this Article should help encourage an important general debate on the role of judicial review of administrative decisions. Labor law reform illustrates why aborting that debate by automatically invoking an unexamined presumption in favor of review can unnecessarily frustrate the achievement of rational, substantive legislative goals.

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