Defending Defenders: Remarks on Nichol and Pierce

Both Nichol and Pierce, as devotees of grand theory, are interested in analyzing Scalia\u27s agenda, however described. They view Defenders as a fundamental change in the Court\u27s standing jurisprudence, in part because of the symbolism they and their fellow detractors impart to the decision. In contrast, the author is apparently a miniaturist, at least when it comes to the possibility of grand theories and broader agendas. Like Justice Kennedy, the author does not read Justice Scalia\u27s opinion to hold that Congress cannot confer standing by defining an injury and relating it to a class of persons entitled to sue

Introductory Remarks

In the interpretation of any statute, there are at least three sources of understanding one can look to: the text, the legislators who penned it, and the judges who interpret it. The methodological problem for lawyers is how to make use of each source of knowledge in attempting to know the law. Judges Abner Mikva and Kenneth Starr, both from the United States Court of Appeals for the District of Columbia Circuit, join issue in the following debate about the correct weight, if any, to give to legislative history in interpreting a statute\u27s meaning

Short Circuiting the Administrative Judiciary: A response to Linda Jellum

Linda Jellum provides a powerful analysis of the status of the exhaustion process for the SEC administrative judiciary and more broadly of the entire administrative judiciary. Many of her arguments are telling and on point. I disagree with a number of her technical and statutory arguments, and even more so the consequences of her analysis for the administrative state as we know it. Jellum\u27s argument is that Congress did not intend to preclude district courts from hearing constitutional challenges to SEC adjudications because agency ALJs are not the right adjudicators to hear challenges to the constitutionality of their own operations

Recent Developments in OSHA Litigation

After almost a year serving as the Solicitor of Labor, I can attest to the difficult challenges the Department of Labor will face and must overcome in the years ahead if it is to continue to be a dynamic and positive force in setting our Nation\u27s labor policy. Indeed, I believe that current rulemaking and enforcement litigation on behalf of the Occupational Safety and Health Administration foreshadows significant issues the Department must resolve in the near future. This article focuses on two such OSH Act issues of current prominence: one, litigation challenges to OSHA rulemaking; and two, the use of voluntary health and safety audits in OSHA enforcement proceedings

The Justice Conundrum

The litigation explosion threatens to overwhelm the capacity of our judicial institutions to respond adequately to the needs of our society. An understanding of this crisis can be achieved only through the questioning of a number of principles central to our justice system. This essay will explore the contours of these questions and evaluate various responses to the litigation crisis. By their nature, the solutions suggested can be only tentative

The Department of Labor’s Glass Ceiling Initiative: A New Approach to an Old Problem

The concept of a glass ceiling is not a new one. At the turn of the century, Marie Curie almost singlehandedly created the field of nuclear chemistry and forever changed the course of science and society. But even the ultimate scientific creativity award did not help her to crack the barrier of the science establishment. She received the Nobel Prize but was denied membership in the French Academie des Sciences because of her gender. It was only after her second Nobel Prize that the ali male Academie reluctantly admitted her to the club. The problem that I have with this story is that a woman should not have to win a Nobel Prize to become a partner in law firm or an executive in a corporation