Category: Notes

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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Toward Correcting the Misapplication of Subrogation Doctrine in California Healthcare – Note by Steven Flower

From Volume 77, Number 5 (July 2004)
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Subrogation has been called a “sleepy, although significant subject,” and perhaps consequently, many articles treating the topic begin with a prefatory example (either real or abstract) of the potential entanglements it can create. In line with this established tradition, this Note begins with two such examples.

Roy Block was injured in an automobile accident caused by another person. Like roughly 23 million other people in California, Block belonged to a managed care organization (“MCO”). His MCO agreed to pay for the treatment of his injuries on the condition that he agree to reimburse it from any eventual tort recovery. This might seem fair since Block might otherwise recover twice for his injuries; first when the MCO paid for his treatment and then again when he recovered from the tortfeasors. Yet, what if Block was not able to recover for all of his injuries, economic or otherwise? For example, what if he suffered a total of $10,000 in damages, half of which was for medical expenses, but was forced to settle for $7,000? Should his MCO still be allowed to recover its full $5,000 claim first, even if this leaves him uncompensated for $3,000 in pain and suffering and lost wages? How should a court interpret MCO contracts that provide for this very contingency? This is one of the problems discussed in this Note.

 

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Paid Family Leave: Striking a Balance Between the Needs of Employees and Employers – Note by Anne Wells

From Volume 77, Number 5 (July 2004)
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Ten years after the Family and Medical Leave Act (“FMLA”) was signed into law, paid family leave emerged as the new focal point in the family rights movement. Paid family leave legislation has been proposed in twenty-eight states and momentum is growing. In September 2002, advocates of paid family leave celebrated their first victory. California became the first state in the nation to enact legislation guaranteeing pay to employees taking leave to care for an ill family member. This legislation propelled paid family leave into the national spotlight, sparking debate on both sides of the issue.

Paid family leave advocates argue that the benefit is a necessary response to demographic and cultural changes in the United States. Labor force participation of women with young children has increased dramatically in the past few decades. In 1998, 62% of women with children under three were working, compared to 34% in 1975. Further, the number of children living in single-parent families rose from 12% in 1970 to 28% in 1998. These changes have resulted in a declining share of children living with a parent who is available to care for them full-time. By 1998, only a quarter of all children had one parent staying at home while the other worked. As a result, balancing the demands of work and family has become more challenging, and advocates argue that paid family leave is of increasing importance for working Americans.

 

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Extradition of Execution? Policy Constraints in the United States’ War on Terror – Note by James Finsten

From Volume 77, Number 4 (May 2004)
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On February 19, 2003, a court in Hamburg, Germany convicted Moroccan national Mounir Motassadeq of over 3000 counts of accessory to murder in connection with the attacks of September 11, 2001. Motassadeq stood accused of being a member of the Hamburg terrorist cell that plotted and executed the hijacking of U.S. aircraft and subsequent attacks on the World Trade Center and Pentagon. He was convicted in a Hamburg higher regional court and sentenced to the maximum term of fifteen years in prison. Motassadeq’s was the first conviction related to the September 11 attacks in any jurisdiction.

On March 4, 2004, a German appellate court vacated this conviction and ordered a new trial after Motassadeq’s lawyers successfully argued that the U.S. government withheld potentially exculpatory evidence during the first trial. In citing the failure of the United States to cooperate with the German courts, Judge Klaus Tolksdorf, presiding judge of the five-judge panel, stated that “‘under the German law, all available evidence must be made available . . . [and] the justice system could not bend to accommodate security concerns stemming from international efforts to fight terrorism. . . . [T]he fight against terrorism cannot be a wild, unjust war.’”

Given that the murders took place on American soil and that the vast majority of victims were American citizens, it may come as a surprise to the American public that their government did not attempt to extradite Motassadeq so that he could face trial in U.S. courts. After all, the United States has held Zacharias Moussaoui since prior to September 11 and charged him with six counts of conspiracy in the aftermath of the attacks. President George Bush himself promised “to pursue the terrorists in cities and camps and caves across the earth.” The United States was willing to pursue regime change in Afghanistan and indefinitely detain al-Qaida suspects in Cuba, and it would stand to reason that the United States would seek custody of anyone who was suspected of aiding the perpetrators of September 11.

 

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Getting Schooled by the Hybrid-Based Tax: Equity and Efficiency in the Federal Tax Treatment of Debt-Financed Post-Secondary Educational Expenditures – Note by Adam Hime

From Volume 77, Number 4 (May 2004)
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The design of the tax system and substance of tax laws have an effect on nearly every economic decision made by individuals. Whether to invest or consume, buy or sell, and what forms of consumption or savings in which to engage are all issues that are influenced by the design of the tax system and the substance of tax laws. The tax treatment of debt in the U.S. hybrid-based income tax system generates inequities and inefficiencies that result from both an inconsistent base and failures in timing. Americans with high net wealth and sophisticated tax advisors can strategically use the inconsistent base and timing problems associated with debt to avoid, delay, or shift tax burdens. Unfortunately, for lower- and middle-class Americans without the benefit of tax advisors, the inconsistent base and timing problems associated with debt in our tax system can be economically detrimental.

One major type of debt that is disproportionately held by lower- and middle-class Americans under thirty-five years of age is debt accumulated to finance post-secondary education and other similar personal investments in their human capital. The unfair and inefficient tax treatment of debt that is acquired to finance post-secondary education is the focus of this Note. These inequities and inefficiencies can be resolved, in whole or in part, by tax reform. This Note discusses three alternative tax reform proposals, focusing on how each may impact the tax treatment of student loan debt. One of these reform proposals functions within the context of a hybrid-based tax, defining debt accumulated to finance post-secondary education as an amortizable investment and generating deductions for taxpayers in later years when their investments provide a higher salary than they would have had without this additional education. The other two reform proposals require fundamentally redefining the tax base and moving toward a pure, consistent income tax or a pure, consistent consumption tax.

 

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Mandatory Joinder: An Indirect Method for Improving Patent Quality – Note by Edward Hsieh

From Volume 77, Number 3 (March 2004)
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The U.S. Patent and Trademark Office (“PTO”) issues over 170,000 patents a year. Unfortunately, the PTO makes mistakes and issues some invalid or “bad” patents that do not meet the statutory requirements of novelty and nonobviousness. The simplest approach to eliminating bad patents is to subject applications to stricter scrutiny by the PTO. A recent article, however, has questioned the efficiency of spending more resources at the examination stage. Aside from the patent prosecution procedure, federal patent law allows administrative reexaminations, either ex parte or inter partes. Nevertheless, the effectiveness of this approach is undercut by the low number of reexaminations actually requested.

This Note takes a more indirect route to improving patent quality. A major problem with the patent litigation system is that it is often cheaper for individual defendants to settle than to litigate, even if the patent is clearly invalid. The current system allows patentees to profit from bad patents and, therefore, creates an incentive to file bad patents. Further, patentees strategically sue small companies, knowing that they lack the resources to challenge patent validity effectively.

 

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