Digital Commons Network^™

The Trademark Use Requirement In Dilution Cases, Stacey Dogan, Mark A. Lemley

Faculty Scholarship

The trademark use doctrine plays a critical role in ensuring that trademark law serves its proper purpose of encouraging market exchange and lowering consumer search costs. As we have explained in detail elsewhere, the doctrine ensures that trademarks do not become a weapon used to suppress speech or to interfere with rather than promote the efficient operation of the marketplace.

Those goals are even more important in the context of trademark dilution. Unlike a normal cause of action for trademark infringement, trademark dilution gives broader rights to a few famous mark owners to prevent even non-confusing uses in order to …

Asbestos And Mass Torts With Fraudulent Victims, Keith N. Hylton

Faculty Scholarship

Deterrence and compensation goals should be distinguished, and compensation priorities should change in response to the deterrence goal. This has immediate implications for the problem of handling marginal and fraudulent claims in asbestos litigation. Where the deterrence goals come to the forefront, for example in instances of reckless exposure, it may be desirable for courts to require defendants to pay damages that are not transferred to any claimants. Where the deterrence goals are less compelling, as in instances of ordinary negligence, the importance of weeding out marginal and fraudulent claims becomes paramount. I consider optimal penalties for attorneys who bundle …

Preemption And Products Liability: A Positive Theory, Keith N. Hylton

Faculty Scholarship

In a large number of products liability lawsuits, sellers assert that plaintiffs' claims should be rejected because their products fall under some federal regulatory regime, and that the regulatory statute takes precedence over or preempts state tort law. This paper is an attempt to set out a positive theory of the doctrine on preemption of products liability claims. The federal case law is largely consistent with an approach that seeks to minimize the costs of erroneous decisions to preempt tort lawsuits. In particular, two factors explain many of the outcomes of the preemption cases in federal courts: agency independence and …

Reincarnating The "Major Questions" Exception To Chevron Deference As A Doctrine Of Non-Interference (Or Why Massachusetts V. Epa Got It Wrong), Abigail Moncrieff

Faculty Scholarship

In a pair of cases declaring a major questions exception to Chevron deference, the Supreme Court held that executive agencies may not implement major policy changes without explicit authorization from Congress. But in Massachusetts v. EPA, the Court unceremoniously killed its major questions rule, requiring the EPA to implement one such major policy change. Because the scholarly literature to date has failed to discern a worthy justification for the major questions rule, the academy might be tempted to celebrate the rule's death. This Article, how-ever, argues that the rule ought to be mourned and, indeed, reincarnated. It offers a non-interference …

Antitrust Law And Regulatory Gaming, Stacey Dogan

Faculty Scholarship

Antitrust law promotes competition in the service of economic efficiency. Government regulation may or may not promote either competition or efficiency, depending on both the goals of the agency and the effects of industry "capture." Antitrust courts have long included regulated industries within their purview, working to ensure that regulated industries could not use the limits that regulation imposes on the normal competitive process to achieve anticompetitive ends. Doing so makes sense; an antitrust law that ignored anticompetitive behavior in any regulated industry would be a law full of holes.

The role of antitrust in policing regulated industries appears to …

The Scope Of Executive Power In The Twenty-First Century: An Introduction, Robert D. Sloane

Faculty Scholarship

This is a revised version of introductory remarks to a panel entitled The Scope of Executive Power held on October 12, 2007, at Boston University Law School's symposium, The Role of the President in the 21st Century. It focuses on an argument advanced by Charlie Savage, among others: that the Bush administration has forged a breathtakingly robust view of the scope of executive power by combining (1) the original Unitary Executive thesis, which insists on the "exclusivity" of certain plenary presidential powers; with (2) a new Unitary Executive thesis, which insists on a vastly expanded vision of the "scope" of …

Choosing The Top Candidate: Best Practices In Academic Law Library Hiring, Ronald E. Wheeler, Nancy P. Johnson, Terrance K. Manion

Faculty Scholarship

The authors discuss successful hiring practices in academic law libraries. Their discussion details each step of the hiring process, from vacancy to offer, and explores strategies for implementing the steps successfully. The processes examined include: reviewing the vacancy, assessing the library needs, forming an effective search committee, writing a winning job description, checking references, conducting an interview, and making an offer. The authors assert that a successful hire will influence every aspect of your library and, as such, a library needs to devote considerable attention and resources to librarian searches.

Empirical Health Law Scholarship: The State Of The Field, Michelle M. Mello, Kathryn Zeiler

Faculty Scholarship

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection - empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges: practical, methodological, and political. The purpose of this Article is to survey the current state of the field by describing commonly used methods, …

Should Access To Medicines And Trips Flexibilities Be Limited To Specific Diseases?, Kevin Outterson

Faculty Scholarship

From the perspective of public health, limiting access programs and TRIPS flexibilities to particular diseases would be quite dangerous and unnecessary. Dangerous because the diseases of the world's rich and poor countries are converging, including non-communicative diseases such as heart disease, stroke, diabetes, cancer and depression. Radically cheaper medicines for these conditions could significantly improve health in LMICs. Limitation is also unnecessary because proven tools can be deployed to preserve high-income markets while LMICs pursue equitable flexibilities.

To date, the important global legal texts retain broad application to all relevant diseases, but the some parties continue to propose disease-specific limitations, …

The Roles Of Standardization, Certification And Assurance Services In Global Commerce, Margaret M. Blair, Cynthia A. Williams, Li-Wen Lin

All Faculty Publications

In this article we examine the rapid emergence and expansion of standardized product and process frameworks and a private-sector compliance and enforcement infrastructure that we believe may increasingly be providing a substitute for public and legal regulatory infrastructure in global commerce. This infrastructure is provided by a proliferation of performance codes and standards, many of which define acceptable social and environmental behavior, and a rapidly-growing number of privately-trained and authorized inspectors and certifiers that we call the third-party assurance industry. We offer reasons for this development, evidence of its scope and scale, and then describe the phenomenon in more detail …

Proportionate Securities Regulation: The Potential For Scaled Treatment Of Junior Issuers, Janis P. Sarra

All Faculty Publications

Particular features of Canada’s capital market inform our consideration of moving towards a more proportionate regulatory system. Specifically, Canada has a large number of small public companies; its market cap is concentrated largely in four provinces; it has a particular focus on mining, resources and technology; and a significant number of issuers are cross-listed on US exchanges. Canadian securities regulators have already recognized some measure of proportionate regulation in their national instruments, based on the type of listing. The paper suggests that a number of overriding principles or considerations should be taken into account in respect of a further move …

Homeownership Risk Beyond A Subprime Crisis: The Role Of Delinquency Management, Melissa B. Jacoby

Faculty Publications

No abstract provided.

Large Domestic Pits On The Northwest Coast Of North America, Kenneth M. Ames, Cameron M. Smith, Alexander Bourdeau

Anthropology Faculty Publications and Presentations

Excavations of prehistoric and contact-period houses on the southern Northwest Coast of North America have exposed very large interior pit complexes. The complexes are either long trenches or rows of pits beneath the house floors. They are associated with substantial permanently occupied houses dated to between 300 CAL B.G. and A.D. 1830. The pits add significantly to the storage potentials of these houses and suggest surplus production.

Coal Combustion Waste Disposal Facility Design: Electric Power Cooperative Selby, South Dakota, Kevin L. Solie

Undergraduate Theses and Senior Projects

A rural electric cooperative (REC) proposes to build a 700 megawatt (MW) coal fired base load electrical generating station in north-central South Dakota. The plant would consist of a supercritical pulverized coal boiler and a steam turbine generator. Solid wastes generated through the operation of the boiler and associated plant air pollution control systems would be disposed at an onsite landfill. A 202-acre landfill with 10 percent slopes is proposed to manage approximately 685 tons of waste each day; a design capacity of 15,000,000 yd3 is required for the anticipated 50-year life of the facility. The objective of this report …

Solution Conformations And Structural Thermodynamics Of Type I Dna Polymerases From Escherichia Coli And Thermus Aquaticus, Allison Joubert Richard

LSU Doctoral Dissertations

The global conformations of DNA polymerase I from Thermus aquaticus (Taq/Klentaq) and E. coli (Pol I/Klenow) both in isolation and in complex with DNA have been examined in solution using hydrodynamic (analytical ultracentrifugation) and small/wide angle X-ray scattering techniques and then compared to their known crystal structures to assess the similarities and differences in the overall structure of these enzymes and enzyme complexes within a solution environment. These studies address the orientation of the 5’ nuclease domain with respect the polymerase domain (elongated or compact) for the full-length polymerases, and the binding mode (“polymerization” versus “editing”) of the DNA substrate …

Possible Groundwater Denitrification In The Decorah Formation (Middle Ordovician), Ashley Ignatius

Undergraduate Theses and Senior Projects

The Decorah Formation is a marine shale of Middle Ordovician age, overlain by an upper carbonate aquifer, that is contaminated with nitrate. The shale may contain electron donors for denitrification in the forms of organic carbon and sulfur minerals.

Three shallow monitoring wells were installed and sampled, and sediment samples collected and analyzed to determine if denitrification is occurring within the Decorah Formation. This study showed that electron donors were present, but in low abundance, suggesting that denitrification is occurring but does not play a significant role in the removal of nitrates at this site.

Effects Of Burning On Henslow's Sparrow (Ammodramus Henslowii) Density And Habitat Quality In Louisiana, Laura M. Palasz

LSU Master's Theses

The Henslow’s Sparrow (Ammodramus henslowii) is a grassland species of concern that winters in prairies and open pine savannas across the Gulf Coastal Plain. Previous studies have indicated that these birds occur at higher densities in recently burned habitats in winter, but this has never been examined over a large geographic area containing multiple habitat types. The objectives of the study were to identify areas of important winter habitat in Louisiana, to examine the relationship between time since burn, bird density, and bird condition, and to determine vegetation structure and composition used by birds. We found most of the new …

Representation & Its Limit, Neal Anderson Hebert

LSU Master's Theses

This thesis is an investigation into traditional accounts of aesthetic representation. Using the work of Noel Carroll as an exemplar of the definition put forward in canonical philosophical accounts of aesthetic representation, I look at how Carroll’s account must work. By examining both the definition in abstract and how this definition is instantiated into existent and hypothetical works of art, it becomes apparent that Carroll’s definition is overly stringent and relies upon a counterintuitive distinction between aesthetic representation and aesthetic expression. This distinction is problematic insofar as the distinction seems to be a largely semantic distinction: the mechanism by which …

Postcard From The Edge (Of Empire), Elizabeth Adjin-Tettey, Gillian Calder, Angela Cameron, Maneesha Deckha, Rebecca Johnson, Hester Lessard, Maureen Maloney, Margot Young

All Faculty Publications

This article in scrapbook form represents the endeavour of the eight authors to document a recent, collective, academic journey. The project was one embarked upon as a means to explore tensions between the ideas of embodiment that connected our work, and the rigidities of academic convention. Using various media, this article strives, in substance and form, to provoke, challenge and confront its audience into dialogue, while simultaneously asking questions about the limits of our own legal imaginations.

Religion As Speech: The Growing Role Of Free Speech Jurisprudence In Protecting Religious Liberty, Mark W. Cordes

Faculty Articles, Papers, and Other Scholarship

This article explores the role of free speech jurisprudence in protecting religious liberty, both describing how that role has grown in recent years and evaluating its propriety for the twenty-first century. The article begins by briefly examine the historic role free speech doctrine has played in protecting religious liberty through the mid-1980’s, when the Rehnquist Court began. Part two will then discuss how during the Rehnquist Court free speech became perhaps the primary vehicle to protect religious liberty. Although the Rehnquist Court largely followed earlier holdings regarding religious speech, it changed the analysis in two significant ways: first, by characterizing …

This Is To Whom It May Concern: A Guantánamo Narrative, 1 Depaul J. Soc. Just. 153 (2008)., Marc D. Falkoff

Faculty Articles, Papers, and Other Scholarship

No abstract provided.

Phylogenetic Analyses Of Two Mitochondrial Metabolic Genes Sampled In Parallel From Angiosperms Find Fundamental Interlocus Incongruence, Melvin R. Duvall, J.W. Robinson, J.G. Mattson, A. Moore

Faculty Articles, Papers, and Other Scholarship

Plant molecular phylogeneticists have supported an analytical approach of combining loci from different genomes, but the combination of mitochondrial sequences with chloroplast and nuclear sequences is potentially problematic. Low substitution rates in mitochondrial genes should decrease saturation, which is especially useful for the study of deep divergences. However, individual mitochondrial loci are insuffi ciently informative, so that combining congruent loci is necessary. For this study atp1 and cox1 were selected, which are of similar lengths, encode components of the respiratory pathway, and generally lack introns. Thus, these genes might be expected to have similar functional constraints, selection pressures, and evolutionary …

Academic Impropriety: Violation Of Normative Teaching Behaviors As Identified By Nursing Educators, Melanie Hilburn Green

LSU Doctoral Dissertations

With public criticism of American higher education on the rise, it is prudent for those in the academy to reflect upon their responsibilities to their students. Of particular salience is an examination of what constitutes misconduct within the faculty role. This dissertation reports the results of a study designed to identify what nursing educators believe to be the violation of normative teaching behaviors. A sequential explanatory mixed methods design was utilized to develop an understanding of the actions that constitute academic impropriety. The College Teaching Behaviors Inventory, a survey instrument designed by Braxton and Bayer (1999), was distributed to deans …

In Re Gault And The Promise Of Systemic Reform, Katherine R. Kruse

Scholarly Works

The right to counsel for juveniles in delinquency cases that the Supreme Court declared in In re Gault can be seen as an effort at systemic reform - a purposeful alteration of the structure, procedure, or resources of a law-administering system that aims to better align the system's operation with the principles or ideals on which it is based. Although the Court articulated the benefits of counsel in terms of individual representation, juvenile defenders are increasingly called upon to expand their role to include broader forms of advocacy aimed at reforming juvenile justice system practice and procedure. The predominant stakeholder …

Genetic Analysis Of The Boundary Element Associated Factors-Beaf32a And Beaf-32b, Swarnava Roy

LSU Doctoral Dissertations

Insulators are DNA elements that have been shown to restrict the communication between enhancers and promoters in transgenic assays. In my PhD work I have attempted to highlight the function and importance of insulators by using the Boundary Element Associated Factors- BEAF -32A and BEAF-32B as model insulator binding proteins. We generated a null BEAFAB-KO allele and BEAFA-KO allele by using homologous recombination method. BEAF-32B was found to be sufficient to obtain viable flies. Our results show that BEAF is required for both oogenesis and development. Position independent expression and enhancer-blocking assays showed that BEAF confers insulator function to scs’ …

Searching For Gravitational Waves From Binary Systems In Non-Stationary Data, Chad Hanna

LSU Doctoral Dissertations

The gravitational wave detectors at the LIGO Observatories have achieved record sensitivity to gravitational-waves produced by astrophysical systems. The LIGO Scientific Collaboration has analyzed data taken in several science runs, searching for different signals. We describe a search for black holes with less than a solar mass in the LIGO data taken from February 22 to March 24, 2005. No gravitational waves were found, and an upper limit was set on the rate of mergers of such binary systems. This search, as well as other searches for binary systems, are affected by non-stationary noise. We describe the sophisticated pipeline that …

Function Based Interventions Versus Non-Function Based Interventions Within A General Education Setting, Michael J. Vance

LSU Master's Theses

Functional Behavioral Assessment is a multi-method set of strategies used to determine a particular behaviors purpose. This method, currently seen as the gold standard for creating behavioral interventions, has since 1997 been required by law for a number of special education concerns. While there is a great deal of data supporting the use of function based interventions for populations with low incidence disabilities, little has been done to analyze their effectiveness for more typically developing children. Given that functional behavioral assessment can be quite time consuming and requires prior training the purpose of this study is to compare function based …

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure?, Stacey A. Tovino

Scholarly Works

This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with …

Digital Storytelling As A Literacy-Based Intervention For A Sixth Grade Student With Autism Spectrum Disorder: An Exploratory Case Study, Brent A. Daigle

LSU Doctoral Dissertations

This study investigates the use of Digital Storytelling as an intervention to improve the academic performance and social interactions of a sixth grade student with High-Functioning Autism. Qualitative methodology, using an inductive approach informed by grounded theory, was employed throughout this exploratory case study. Three separate data sources, consisting of document analysis, interviews, and participant observation, contributed to the findings of this study. Triangulation of inquiry methods enhanced the validity and rigor of this investigation. The findings from this inquiry indicate that Digital Storytelling was beneficial to the participant in this exploratory case study. Engaged student processes and critical analysis …

Only Skin Deep: The Cost Of Partisan Politics On Minority Diversity Of The Federal Bench: Why Care Whether Judges Look “Like America” If, Because Of Politics, A “Voice Of Color” Has Become A “Whisper Of Color”?, Sylvia R. Lazos

Scholarly Works

This article explores the difficulties encountered in diversifying the federal bench and why the partisanship of the confirmation process decreases the diversity of viewpoints on the bench. Presidents value diversity in nominating judges. While Bill Clinton and George W. Bush had very contrasting political styles and judicial philosophies, the judges appointed by these two presidents now account for almost 80% of the current active federal minority judges. There has been progress in the area of descriptive diversity; currently 18% of the active federal bench is made up of minority judges according to data compiled from the Judicial Center. However, there …