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Volume 32, Issue 8 — August 2002

Articles

Rio's Unfinished Business: American Enterprise and the Journey Toward Environmentally Sustainable Globalization

by William L. Thomas

[EDITOR'S NOTE: PART 2 OF 2. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON LEXIS TO ACCOMMODATE ITS LARGE SIZE. EACH PART CONTAINS THE SAME CITE.]

Genencor International

Corporate Responsibility demands that we take a global, long-range view of environment, social-equity and economic issues. Industry can no longer focus primarily on waste management and disposal of toxic by-products. To achieve business operations which are sustainable over the long-term, companies must shift focus from cleanup at the back end of the process stream to anticipating and preventing pollution at its source, to evaluating the impacts of the enterprise on the communities in which it operates. We believe that over the long term, sustainability is critically linked to our own business success and acting on these ideas will contribute to our company's future growth.289

While some companies are reticent to disclose their sustainability efforts for fear of attracting unwanted scrutiny,290 Genencor International is not among them. For chairman and CEO W. Thomas Mitchell, the philosophy and motives underlying his company's decision to embark on "a long-term path toward sustainability"291 are straight-forward: "We believe the key to the world's future growth and economic stability is sustainable development."292 Genencor's policy on sustainability reads as follows:

An Old Problem for a New Century: International Approaches to the Elimination of Lead Poisoning

by K.W. James Rochow

Introduction

Lead poisoning, as a mirror of the persistence of its stolid and elemental agent,1 has remained a serious threat to health and development for centuries, indeed millennia.2 The failure of modern societies to solve even this abundantly documented problem "with both causes and cures known" has given rise to repeated prophecies of social doom.3 The obverse opportunity presented by the World Summit on Sustainable Development (WSSD) process4 is to establish a Global Lead Initiative (GLI) that will presently reduce and ultimately eliminate this long-standing worldwide threat. While the conquest of lead poisoning will constitute a signal victory in itself, its concrete achievement should also serve as an optimism-engendering model of international cooperation adaptable to solving other threats to sustainable development. In order to achieve this precedential victory, it is essential that the United States maintains and intensifies its leadership role on lead poisoning prevention in an internationalized context.5

The GLI should be designed to complete worldwide leaded gasoline phase-out6 on an expedited basis and to use the momentum from that success to address the multiple other sources of lead exposure. Modeled on proven processes such as the Summit of the Americas, the project should initially convene a technical advisory group to work in partnership with identified government focal points, as well as nongovernmental organizations (NGOs) and the private sector, to prepare action plans for phase-out that include milestones and time lines for national action. The United States should support the GLI and such complementary activities as the development of an international network dedicated to raising public awareness and exchanging best practices for phase-out and prevention, including those based on U.S. experience.

After Enron: How Accounting and SEC Reform Can Promote Corporate Accountability While Restoring Public Confidence

by Michelle Chan-Fishel

The recent bankruptcy of one-time energy giant Enron Corporation and its impact on the lives of employees and investors has spawned no less than six congressional investigations, four government probes, and countless news articles, editorials, and kitchen table discussions on the nature of corporate responsibility, governance, finance, and accounting. The Enron collapse, which has been described as "a landmark scandal of American business,"1 may prompt major overhauls in many areas of economic life, including accounting practices, retirement saving, and corporate governance.

While many policymakers and analysts are focused on finding solutions that directly address some of the most out-rageous aspects of the Enron case—for example, barring corporate executives from selling company stock while employees are prohibited from doing so—others are seeking ways to address broader problems such as auditor independence. Still others are exploring more radical structural changes to the way we conduct our economic activity, tapping into the increasing sentiment among the American public that the Enron story, "with its Shakespearean themes of greed, ambition and arrogance,"2 tells of how Big Business' unchecked power and greed can create misery for ordinary people.

Dialogue

"Two Strikes and You're Out!": How to Prevail in Daubert Challenges

by Ned Miltenberg and Anthony Z. Roisman

In 1992, Drs. Arnold Schecter and Daniel Teitelbaum, two highly qualified scientists, testified that polychlorinated biphenyls (PCBs), together with certain dioxins and furans that were PCB derivatives, could have accelerated cancer in a 37-year-old electrician who, as part of his job, had bathed daily for many years in a "PCB-dielectric soup." Although Drs. Schechter and Teitelbaum had carefully described their data, methodologies, and scientific reasoning, in 1997, the U.S. Supreme Court, in General Electric Co. v. Joiner,1 ruled that their detailed explanations of how they had reached their conclusions were not detailed enough and therefore inadmissible. Strangely, an explanation that would easily satisfy the editors of a peer review journal or the organizers of an academic conference as being scientifically valid may not be legally "reliable" and "admissible."

The decision in Joiner, like the more famous decision four years earlier in Daubert v. Merrell Dow Pharmaceuticals, Inc.,2 has led to increasingly frequent and successful challenges to the testimony of expert witnesses in "toxic tort" cases.3 Although, the campaign against "junk science" is ostensibly aimed at "rogue," "out-of-the-mainstream," "eccentric," and otherwise disreputable phony scientists, corporate lawyers are using the standards of legal admissibility developed in Daubert and Joiner not only to exclude the testimony of inexperienced or unqualified experts but to target anyone who dares testify against corporate practices that endanger human health and life.

The Need for Jurisdictional and Structural Class Action Reform

by Martin H. Redish

This discussion is adapted from comments which Lawyers for Civil Justice, a nationwide coalition of defense and corporate counsel working to improve the civil justice system, requested that I submit to the Civil Rules Advisory Committee (Advisory Committee) of the Judicial Conference of the United States (Judicial Conference) regarding class action reform and pending, proposed amendments to Rule 23 of the Federal Rules of Civil Procedure (FRCP). In those comments, I supported the adoption of the proposed amendments to Rule 23 with regard to overlapping class actions and argued for even more sweeping and fundamental revisions of federal class action jurisdiction and procedure.

It is my position that modern class action procedure, on both jurisdictional and structural levels, is in need of significant retooling in order to prevent serious harm to the attainment of many of the most fundamental goals underlying the federal procedural system. These goals include: (1) making the adjudicatory system as efficient as reasonably possible; (2) avoiding use of the litigation system for purposes of harassment or coercion; (3) assuring individuals a meaningful opportunity to control both the choice whether to litigate in order to vindicate their private rights and the ability to control the conduct of that litigation if the choice is made to sue; and (4) assuring that the FRCP do not alter substantive law in a manner prohibited by the Rules Enabling Act (REA).1 In one way or another, the current method of adjudicating class actions has dangerously undermined the procedural system's pursuit of each of these vitally important social, political, and (in certain respects) constitutionally grounded ends.