Digital Commons Network^™

Appellate Review Of Discovery Orders In Federal Court: A Suggested Approach For Handling Privilege Claims, Cassandra Burke Robertson

Faculty Publications

The federal circuit courts of appeals have generally recognized that a party suffers real hardship when the district court erroneously orders it to disclose privileged information. Review of the disclosure order after final judgment is usually an insufficient remedy; once the information has been disclosed, it can never again be fully confidential. Consequently, the courts have struggled to provide a mechanism by which such orders can be immediately appealed. However, privilege orders presenting novel questions of law or issues of first impression do not clearly fit within the doctrinal requirements of the most common methods of interlocutory review. Appellate courts …

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron K. Perzanowski

Faculty Publications

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

Judicial Incorporation Of Trade Usages: A Functional Solution To The Opportunism Problem, Juliet P. Kostritsky

Faculty Publications

Article 2 of the UCC directed courts to look to business norms as a primary means of interpreting contracts. Recently the new formalists have attacked this strategy of norm incorporation as a misguided one that will lead inevitably to significant error costs. Accordingly, they have embraced plain meaning as the preferred interpretive strategy. This article argues that the strategy of rejecting trade usages unless they are part of the express contract is too rigid. The rejection is premised on an overly narrow cost/benefit analysis that fails to account for the functional role that such usages may play in curbing opportunistic …

The Model Federal Sentencing Guidelines Project: A Simplified Economic Crimes Guideline, Model Sentencing Guidelines §2b1.1, Frank O. Bowman Iii

Faculty Publications

This Article is the third of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929.

Deconstructing Evangelical Theology?, Fernando L. Canale

Faculty Publications

No abstract provided.

A Sustainable, Systematic Process For Continuous Program Improvement, Nikos J. Mourtos

Faculty Publications

The USA Accreditation Board for Engineering and Technology (ABET) adopted recently a new set of criteria for evaluating engineering programmes. One of these (criterion 3) refers to programme outcomes and assessment. In this article, the author describes the design and implementation of a sustainable, systematic process for defining and assessing programme outcomes. This process involves analysing each outcome into elements, defining a set of attributes for each element, selecting outcome indicators and performance targets, and developing special rubrics for an accurate assessment of student skills. The author also describes a systematic way of addressing specific programme outcomes through course and …

Intellectual Property Resources In And For Space: The Practitioner's Experience, Gary Myers

Faculty Publications

Today, our inquiry is timely because, increasingly, intellectual property law is becoming more important in space activities. The increasing sophistication of international cooperation and the growth of commercial and private space activities have brought intellectual property issues to greater prominence.

Temperature Dependence And Thermodynamics Of Klenow Polymerase Binding To Primed-Template Dna, Kausiki Datta, Andy J. Wowor, Allison J. Richard, Vince J. Licata

Faculty Publications

DNA binding of Klenow polymerase has been characterized with respect to temperature to delineate the thermodynamic driving forces involved in the interaction of this polymerase with primed-template DNA. The temperature dependence of the binding affinity exhibits distinct curvature, with tightest binding at 25-30°C. Nonlinear temperature dependence indicates Klenow binds different primed-template constructs with large heat capacity (ΔCp) values (-870 to -1220 cal/mole K) and thus exhibits large temperature dependent changes in enthalpy and entropy. Binding is entropy driven at lower temperatures and enthalpy driven at physiological temperatures. Large negative ΔCp values have been proposed to be a 'signature' of site-specific …

The Evolving Domestic And International Law Against Foreign Corruption: Some New And Old Ethical Dilemmas Facing The International Lawyer, Juscelino F. Colares

Faculty Publications

This article examines the origins and meaning of the Export Clause in Article I, section 9 of the United States Constitution, which provides that "[n]o Tax or duty shall be laid on Articles exported from any State."

Part I of the article considers the original understanding of the Export Clause, concluding that, without the Clause, the Constitution would not have been adopted. In light of the Export Clause's significance in the constitutional structure, Part II examines the Supreme Court's decisions in United States v. International Business Machines Corp., 517 U.S. 843 (1996) (IBM), and United States v. United States Shoe …

Early Maize (Zea Mays L.) Cultivation In Mexico: Dating Sedimentary Pollen Records And Its Implications, Andrew Sluyter, Gabriela Dominguez

Faculty Publications

A sedimentary pollen sequence from the coastal plain of Veracruz, Mexico, demonstrates maize cultivation by 5,000 years ago, refining understanding of the geography of early maize cultivation. Methodological issues related to bioturbation involved in dating that record combine with its similarity to a pollen sequence from the coastal plain of Tabasco, Mexico, to suggest that the inception of maize cultivation in that record occurred as much as 1,000–2,000 years more recently than the previously accepted 7,000 years ago. Our analysis thereby has substantive, theoretical, and methodological implications for understanding the complex process of maize domestication. Substantively, it demonstrates that the …

Plasmid-Mediated High-Level Gentamicin Resistance Among Enteric Bacteria Isolated From Pet Turtles In Louisiana, María Alejandra Díaz, Richard Kent Cooper, Axel Cloeckaert, Ronald John Siebeling

Faculty Publications

The sale of small turtles is banned by the Food and Drug Administration from the U.S. market due to concerns about their excretion of Salmonella spp. To produce a safe pet for the export market, the Louisiana pet turtle industry uses gentamicin sulfate baths (1,000 μg/ml) to eradicate Salmonella spp. from turtle eggs. In 1999, we analyzed bacterial samples recovered from turtle farms and found that strains of Salmonella enterica subsp. arizonae and other bacteria, such as Enterobacter cloacae, Citrobacter freundii, Pseudomonas aeruginosa, and Stenotrophomonas maltophilia, were resistant to high concentrations of gentamicin (>2,000 μg/ml) and to other aminoglycosides. …

Remembering The Public Domain, Christine Galbraith Davik

Faculty Publications

Rapid advances in communication technology over the past decade have resulted in the previously unimaginable ability to seamlessly exchange ideas and data on a global basis. Nonetheless, despite the undeniable progress that has been made, access to information is ironically becoming progressively more. This is due in large part to the fact that resources which belong in the public domain are increasingly being transformed into private property. The carefully balanced provisions of copyright law are gradually becoming displaced by contractual, technological, and legislative constraints that allow for the tight control of access to and use of the materials in question. …

Transformed, Not Transcended: The Role Of Extrajudicial Dispute Resolution In Antebellum Kentucky And New Jersey, Carli N. Conklin

Faculty Publications

The purpose of this paper is to explore the applicability of that conclusion to two states not studied by Horwitz: Kentucky and New Jersey. The study of Kentucky, a state that was largely agricultural in the antebellum period, will provide a case study for the argument that the destruction of arbitration in antebellum America was mainly due to a merchant-lawyer alliance.

Tweaking Antitrust's Business Model , Thom Lambert

Faculty Publications

This essay evaluates Hovenkamp's suggestions, concluding that most are sound, that a few might be slightly revised to enhance their effectiveness or administrability, and that a couple are downright unwise. In particular, the essay criticizes Hovenkamp's call for abandonment of the indirect purchaser rule and his proposed test for identifying exclusionary conduct under Section 2 of the Sherman Act.

Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben

Faculty Publications

Many people assume that arbitration is private and confidential. But is that assumption accurate? This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications …

Untangling The Privacy Paradox In Arbitration, Amy J. Schmitz

Faculty Publications

Arbitration is private but not secret. This truism regarding arbitration seems contradictory and nonsensical. However, common understandings of privacy in arbitration often lull individuals into assuming personal information revealed in arbitration may not become public. They assume privacy and confidentiality are synonymous. The reality is that arbitration is private but not necessarily confidential, or secret. This is the privacy paradox: it defies common conceptions of arbitration's secrecy, but is nonetheless true. This paradox is problematic because it leads to shortsighted contracting and simplistic assumptions about arbitral justice. Moreover, it may foster injustice when repeat players unduly benefit from unpublished awards …

Katrina And The Rhetoric Of Federalism, Christina E. Wells

Faculty Publications

The public's desire to assign blame for government's inadequate response to Hurricane Katrina has largely focused on the federal government's slow and seemingly inept response to the storm. In their own defense, federal officials cast federalism--the system that divides power among federal, state, and local governments--as the main culprit underlying their inadequate response to hurricane victims. Had power and authority not been split among three different units of government, the argument goes, the federal government might have been able to act more quickly to save lives and prevent suffering. In effect, federal authorities claim to have been hamstrung by a …

Cia V. Sims: Mosaic Theory And Government Attitude, Christina E. Wells

Faculty Publications

In CIA v. Sims, the United States Supreme Court held that the CIA could withhold information about controversial government-sponsored psychological experiments in response to Freedom of Information Act (FOIA) requests. The Court reasoned that the requested information would reveal intelligence sources related to national defense, which were specifically protected from disclosure under the National Security Act of 1947. Accordingly, the Court concluded that the CIA could refuse to disclose the information under FOIA Exemption 3, which allows withholding of information “specifically exempted from disclosure by statute.” Numerous scholars assailed Sims, arguing that the Court's broad reading of the National Security …

Patent Donations And Tax Policy, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

To achieve the policy goals of ultimate innovation, the government should provide incentives to encourage the patentees to donate, rather than abandon, their "orphan" patents to universities, hospitals, and other nonprofit organizations with research and development facilities that can properly exploit the patents. The authors advocate for the implementation of incentives that would encourage donors to surrender their monopolistic ownership of patents for the benefit of charitable organizations and, in tum, the development and growth of society.

Taxing Trademarks And Domain Names, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

With the arrival of global electronic commerce transactions on the Internet, new forms of intellectual property rights, such as Internet domain names, have emerged. Today, Internet domain names are some companies' most valuable assets. Yet law professors, attorneys, and judges struggle with the legal nature of domain names, which is far from settled. Questions drawing recent attention include: How should domain names be valued? Can domain names be used as collateral in secured transactions, and how does one perfect a security interest in domain names? What will happen to domain names in bankruptcy?

The Paradox Of Personality: Mental Illness, Employment Discrimination, And The Americans With Disabilities Act, Deirdre M. Smith

Faculty Publications

Both medicine and the law devote considerable concern to drawing lines, that is, to classifying and making distinctions. In medicine, such line-drawing occurs when a person is designated healthy or ill, normal or disordered. In the law, such line-drawing determines who does and does not bear legal responsibility for a given situation. This Article reviews the demarcation drawn by psychiatry and the courts between disfavored personality and mental illness, a dichotomy not based upon empirical science and therefore, wholly susceptible to social construction and implementation. While society may pathologize noxious personalities, thus making them disabilities, it is loath to extend …

Parenting And Peer-Group Behavior In Cultural Context, David A. Nelson, Larry J. Nelson, Craig H. Hart, Chongming Yang, Shenghua Jin

Faculty Publications

© Cambridge University Press 2006 and Cambridge University Press, 2009. Whether specific patterns of parenting are similarly associated with child peer group behavior in diverse cultural contexts has been a fascinating topic of inquiry. From classic anthropological studies dating back to the early twentieth century to the current interest in cross-cultural studies, knowledge concerning the question of universality and cultural variation in parenting linkages to childhood adjustment has expanded at an unprecedented rate (e.g., Harkness & Super, 2002). As the general field of parenting research has uncovered distinctions in parenting styles and practices (e.g., Darling & Steinberg, 1993; Hart, Newell, …

An Updated Meta-Analysis Of Genome Scans For Hypertension And Blood Pressure In The Nhlbi Family Blood Pressure Program (Fbpp), Xiaodong Wu, Donghui Kan, Michael Province, Tom Quertermous, D. C. Rao, Christy Chang, Thomas H. Mosley, David Curb, Eric Boerwinkle, Richard S. Cooper

Faculty Publications

A meta-analysis of the results from a multicenter genome-wide linkage study for hypertension and blood pressure (BP) based on an initial sample of 6,245 individuals was published in 2003. We report here a combined linkage analysis of hypertension and BP using the complete Family Blood Pressure Program (FBPP) dataset, which includes a total of 12,028 genotyped individuals. Genome-wide linkage analyses for hypertension and BP were first performed in each of the studied ethnic group within each network and the results were combined with a meta-analysis using a modified Fisher's method of combining P values. Our meta-analysis of genome scans for …

Comparative Susceptibility Of Sweetpotato Weevil (Coleoptera: Brentidae) To Selected Insecticides, Tara P. Smith, Abner M. Hammond

Faculty Publications

The response of sweetpotato weevil, Cylas formicarius (F.) (Coleoptera: Brentidae), to insecticides used for its control was tested in laboratory bioassays. A glass vial bioassay technique was used to determine the susceptibility of two cohorts of sweetpotato weevil to selected insecticides. Vials were treated with methyl parathion, bifenthrin, cyfluthrin, carbaryl, and phosmet. Sweetpotato weevils demonstrated a mortality response to increasing concentrations of all insecticides tested, and our results indicated decreases in susceptibility of the Louisiana cohort of sweetpotato weevil compared with the Texas cohort for all insecticides tested. Methyl parathion was the most toxic chemical tested for both cohorts, followed …

Introduction: Self-Organization In Nonequilibrium Chemical Systems, Irving R. Epstein, John A. Pojman, Oliver Steinbock

Faculty Publications

The field of self-organization in nonequilibrium chemical systems comprises the study of dynamical phenomena in chemically reacting systems far from equilibrium. Systematic exploration of this area began with investigations of the temporal behavior of the Belousov-Zhabotinsky oscillating reaction, discovered accidentally in the former Soviet Union in the 1950s. The field soon advanced into chemical waves in excitable media and propagating fronts. With the systematic design of oscillating reactions in the 1980s and the discovery of Turing patterns in the 1990s, the scope of these studies expanded dramatically. The articles in this Focus Issue provide an overview of the development and …

Quantum Interpretations, A. R.P. Rau

Faculty Publications

Difficulties and discomfort with the interpretation of quantum mechanics are due to differences in language between it and classical physics. Analogies to the special theory of relativity, which also required changes in the basic world-view and language of nonrelativistic classical mechanics, may help in absorbing the changes called for by quantum physics. There is no need to invoke extravagances such as the many-worlds interpretation or specify a central role for consciousness or neural microstructures. The simple, but basic, acceptance that what is meant by the state of a physical system is different in quantum physics from what it is in …

Open Systems Viewed Through Their Conservative Extensions, Alexander Figotin, Stephen P. Shipman

Faculty Publications

A typical linear open system is often defined as a component of a larger conservative one. For instance, a dielectric medium, defined by its frequency dependent electric permittivity and magnetic permeability is a part of a conservative system which includes the matter with all its atomic complexity. A finite slab of a lattice array of coupled oscillators modelling a solid is another example. Assuming that such an open system is all one wants to observe, we ask how big a part of the original conservative system (possibly very complex) is relevant to the observations, or, in other words, how big …

Woman- Centered Post-Abortion Care In Public Hospitals In Tucuman, Argentina: Assessing Quality Of Care And Its Link To Human Rights, Rodolfo Gomez Ponce De Leon Phd, Deborah Lynn Billings Phd, Karina Barrionuevo

Faculty Publications

Unsafe abortion is a major public health and human rights problem in
Argentina. Implementation of a woman-centered post-abortion care
(PAC) model is one strategy to improve the situation. The quality of PAC
services was measured in three public hospitals in Tucumin, a province
with high levels of poverty and maternal mortality due to unsafe abortion.
Overall, the quality of PAC services was found to be poor. Women
do not receive services in a manner that respects their human rights, in
particular their rights to health and health care, information, and to the
benefits of scientific progress. Findings from the evaluation …

Fragments Of Development, By Suzanne Bergeron And A Critical Rewriting Of Global Political Economy: Integrating Productive, Reproductive, And Virtual Economies, By V. Spike Peterson, Drucilla K. Barker

Faculty Publications

A review of Fragments of Development, by Suzanne Bergeron, and A Critical Rewriting of Global Political Economy: Integrating Productive, Reproductive, and Virtual Economies, by V. Spike Peterson.

When Do Treaties Create Individually Enforceable Rights?: The Supreme Court Ducks The Issue In Hamdan And Sanchez-Llamas, David Sloss

Faculty Publications

No abstract provided.