Month: September 2004

Volume 77, Number 6 (September 2004)

Volume 77, Number 6 (September 2004)

American Corporate Governance and Children: Investing in Our Future Human Capital During Turbulent Times – Article by Marleen O’Connor-Felman

From Volume 77, Number 6 (September 2004)
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The goal of this Article is to establish a new area of research exploring the connection between corporate governance and the well-being of children. Admittedly, at first glance, the relationship between the hard-nosed world of corporate law and the welfare of our nation’s most vulnerable citizens is far from obvious. We must step back to see the bigger picture – using the knowledge that we are at a historical transition from an industrial society to a knowledge-based economy. With this wide-angled lens, we can see connections among our most basic institutions of family, work, and corporation. Specifically, each institution is simultaneously in the midst of dramatic social and economic turmoil. Yet, these disruptions are not isolated events. Rather, crucial patterns of relationships emerge across time and among nations.

To explore how the transformations in family, work, and corporation are interwoven, we must start with the premise that human capital is the crucial factor for this nation’s success in the new economy. Even for low-level jobs, the so-called knowledge worker needs math and computer literacy to problem solve and cooperate in teams. The United States has experienced remarkable economic prosperity in the past decade, but when we look into the future, a different picture begins to surface. Compared to other advanced economies, the skill proficiency of our youngest generation of workers is lacking. Given this skills deficit, a wide variety of policymakers have begun to consider the topic of human capital formation. A general consensus exists that there is a danger that America’s children will be unable to meet the needs of tomorrow’s flexible labor markets.

 

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For the Birds: The Statutory Limits of the Army Corps of Engineers’ Authority over Intrastate Waters After SWANCC – Note by Jennifer DeButts Cantrell

From Volume 77, Number 6 (September 2004)
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Every year the Army Corps of Engineers receives over 74,500 applications for permits under section 404(a) of the Clean Water Act (“CWA”), the provision regulating the discharge of fill or dredged material into the nation’s waters. Consequently, when the Supreme Court granted certiorari for Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”) – a case potentially affecting the status of millions of acres of American wetlands – property owners, developers, and environmentalists alike were wise to stand up and take notice.

The SWANCC case involved a Chicago-area consortium of municipalities that sued the U.S. Army Corps of Engineers (“Corps”) for denying them a permit to develop a landfill on an abandoned mining site because the Corps had determined the land in question was inhabited by migratory birds. The central issue presented in SWANCC was whether this “Migratory Bird Rule” – a regulation promulgated in 1986 giving the Corps authority over wetlands populated by migrating birds – was a proper exercise of jurisdiction under the CWA. The municipalities argued that the rule exceeded the Corps’ authority because the CWA was meant to only regulate waters that are navigable or that adjoin navigable waterways. On the other hand, the Corps argued that its jurisdiction is not limited by traditional notions of navigability; rather it has authority over the nation’s waters to the fullest extent of the Commerce Clause.

 

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Toward Certainty and Uniformity in Patent Infringement Cases after Festo and Markman: A Proposal for a Specialized Patent Trial Court with a Rule of Greater Deference – Note by Gregory J. Wallace

From Volume 77, Number 6 (September 2004)
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The increasingly complex technology involved in patent infringement cases has lead many to question the ability of district court judges and jurors in such cases to issue uniform and predictable decisions. In fact, there is evidence that the Federal Circuit Court of Appeals – the appellate court with sole jurisdiction and accumulated expertise in patent law – routinely overrules district court decisions regarding claim construction and prosecution history estoppel under the doctrine of equivalents. Given the frequency with which the Federal Circuit overturns district court decisions, and the fact that nearly every patent infringement case involves a dispute over claim construction or prosecution history estoppel under the doctrine of equivalents, patent infringement cases are typically uncertain until after appeal.

The uncertainty of patent infringement cases until after appeal is highly problematic for several reasons. First, uncertainty at the trial level is inefficient because it stimulates appeals rather than settlements. Second, it “creates doubt about the ability of district court judges to adjudicate complex technical patent [infringement] cases.” Finally, this uncertainty may even have the far-reaching effect of stifling innovation. Thus, the current system of adjudication for patent infringement trials is in need of reform, and a specialized patent trial court combined with a rule of greater deference appears to be the most effective means for bringing needed certainty to patent infringement trials.

 

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