Hastings Law Journal


Law as Equilibrium hypothesizes that the Supreme Court acts strategically, through signals and implicit bargains with the coordinate branches, to import its substantive values to public policies. In this Article, Professor LeRoy provides strong empirical support for this theory.

Examining 467 National Labor Relations Board decisions over a 60- year period that categorized permanent replacement strikes as "economic" or "unfair labor practice" (ULP) strikes, I find remarkable evidence of decisional constancy. For the 1940s, the Board ruled that a replacement strike was also a ULP strike in 39% of its cases. These rulings essentially negated an employer's right to hire permanent replacements by ordering the immediate reinstatement of strikers. This rate was 47% for the 1950s; 47% for the 1960s; 41% for the 1970s; 37% for the 1980s; and 41% for the 1990s.

This uniformity is phenomenal in two respects. Sharply diminished strike activity over this period has done nothing to change the Board's propensity to rule on these strikes. More important, in light of Law as Equilibrium, these results show that the NLRB and Supreme Court-the progenitors of the economic and ULP strike doctrines- have behaved strategically by anticipating each other's responses, and by signaling the nature and intensity of their striker replacement policy preferences. Thus, the National Labor Relations Act has evolved to bring into equilibrium not only the law of striker replacements, but also, the conflicting policy preferences of these coordinate branches.

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