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Articles 1 - 28 of 28
Full-Text Articles in Law
Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas
Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas
Law Faculty Scholarly Articles
COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.
Everything You Always Wanted To Know About Gouging (But Were Afraid To Ask): A Response To Ramsi Woodcock, Brian L. Frye
Everything You Always Wanted To Know About Gouging (But Were Afraid To Ask): A Response To Ramsi Woodcock, Brian L. Frye
Law Faculty Scholarly Articles
Good scholarship makes you change your mind, but great scholarship
makes you think differently. As usual, Ramsi Woodcock's article "The Efficient
Queue and the Case Against Dynamic Pricing", is great, because it made me
think differently about price regulation. Woodcock observes that prices not
only communicate information, but also redistribute resources. Sometimes,
producers change prices in response to competition or changes in the cost of
production. But other times, they change prices just because they can.
When prices reflect the marginal cost of production, consumers benefit
from market efficiencies. But when prices reflect a surge in demand, they
simply transfer …
Court Packing Is A Chimera, Brian L. Frye
Court Packing Is A Chimera, Brian L. Frye
Law Faculty Scholarly Articles
The dream of the 1930s is alive in Washington. Democrats see
Republicans hemorrhaging voters as Trump struggles with the
economy and the pandemic and are salivating at the prospect of
retaking not only the White House, but also the Senate. Of course, you
should never sell a bearskin until you've caught the bear. But even a
blowout victory can't get Democrats the prize they really want, a
Supreme Court majority. So, in back-to-the-future fashion, many
progressives are pushing the idea of court packing. After all, in politics,
rules are made to be broken.
Literary Landlords In Plaguetime, Brian L. Frye
Literary Landlords In Plaguetime, Brian L. Frye
Law Faculty Scholarly Articles
The coronavirus pandemic has affected our lives in countless ways. One of its unfortunate effects was the unavoidable closure of public libraries. Many people rely on public libraries for many different things, including free access to books. When public libraries closed, many people lost access to books, especially new books.
In response, the Internet Archive created the National Emergency Library to make digital copies of books more accessible. The Internet Archive's Open Library is a free digital lending library founded in 2006 that provides digital access to the books in its collection. Currently, the Open Library holds about 4 million …
Diagrammatics And The Proactive Visualization Of Legal Information, Michael D. Murray
Diagrammatics And The Proactive Visualization Of Legal Information, Michael D. Murray
Law Faculty Scholarly Articles
This article performs an analysis of one mode of visual legal communication:
diagrammatics and the visualization of legal data and other information
in legal instruments and communications.
The Proactive Law movement and the Legal Design movement each
seek to transform legal instruments and documents to improve access to and
comprehension of the communication of law to all persons. “All persons”
includes both law-trained and non-law-trained persons and extends from the
literate and educated all the way to disadvantaged, illiterate, and less-thanfully
literate persons. The overall goal of the Proactive Law movement and a
primary goal of Legal Design is to …
Plagiarism Pedagogy: Why Teaching Plagiarism Should Be A Fundamental Part Of Legal Education, Brian L. Frye, Megan E. Boyd
Plagiarism Pedagogy: Why Teaching Plagiarism Should Be A Fundamental Part Of Legal Education, Brian L. Frye, Megan E. Boyd
Law Faculty Scholarly Articles
As a practicing lawyer, if you aren’t plagiarizing, you’re committing malpractice. Litigators copy forms and arguments from winning briefs rather than bill their clients for reinventing the wheel. Transactional lawyers copy enforceable agreements to ensure their agreements are enforceable too. Partners routinely present documents prepared by associates (and sometimes even paralegals) as their own work. And judges are the most prolific plagiarists of all, copying briefs, opinions, treatises, and legal and nonlegal scholarship, adopting arguments from lawyers and holdings from other judges as their own and claiming authorship of opinions written primarily by their clerks or the parties to the …
Conceptual Copyright, Brian L. Frye
Conceptual Copyright, Brian L. Frye
Law Faculty Scholarly Articles
Conceptual art is art that consists of ideas, not their realization. It tests the
boundaries of art, by eliminating the art object entirely. Legal scholars should be
interested in conceptual art because it can help them test the boundaries of legal
doctrines and their justifications. I created a work of conceptual art that reflects
on both the securities laws and copyright doctrine. Among other things, I asked
the SEC and the Copyright Office to opine on that work, with limited success. I
use my experience to reflect on how conceptual art can illuminate our
understanding of the law.
A License To Plagiarize, Brian L. Frye
A License To Plagiarize, Brian L. Frye
Law Faculty Scholarly Articles
Since time immemorial, authors have wanted to own various kinds of
exclusive rights in the works they create. Curiously, the rights authors want
to own at any particular point in time tend to reflect the nature of the market
for the works they create. The first exclusive right authors wanted was attribution.
In classical Greece, philosophers accused each other of copying
ideas without attribution. The Roman poet Martial coined the term plagiarius
to criticize other poets for passing off his poems as their own. Even
medieval Irish poets observed plagiarism norms that prohibited copying
without attribution. In all of these …
The Right Of Reattribution, Brian L. Frye
The Right Of Reattribution, Brian L. Frye
Law Faculty Scholarly Articles
Usually, authors love their works as their children: fiercely and unconditionally. Indeed, many authors refer to their works as their “children,” and some show far more solicitude for their aesthetic children than their actual ones. Of course, authors can also be cruel to their works. As William Faulkner famously observed, “In writing you must kill all your darlings.” But even such merciless culling doesn’t prevent authors from loving what survives. If anything, their love only deepens with each sacrifice.
But even the filial bond can be broken. Many disappointed parents have disowned their prodigal children. Sometimes the relationship can be …
Special Education's Lessons For School Funding Litigation, Spencer C. Weiler, Scott R. Bauries
Special Education's Lessons For School Funding Litigation, Spencer C. Weiler, Scott R. Bauries
Law Faculty Scholarly Articles
In this Article, we make the case that the currently dominant approaches to challenging the constitutionality of a state’s funding efforts have proven ineffective. Instead, future lawsuits designed to bring about lasting funding reform should be informed by the successes within the field of special education by asking courts to examine individual-rights claims based on one student, or several similarly-situated individual students, petitioning the court for relief tailored to that student or class. Such an approach to school finance litigation could result in a decision that limits relief to just one application of the entire funding formula, and the remedy …
These Are A Few Of My Least Favorite Things, Richard C. Ausness
These Are A Few Of My Least Favorite Things, Richard C. Ausness
Law Faculty Scholarly Articles
The Uniform Probate Code ("UPC") can trace its origins back to a Model Probate Code promulgated by the American Bar Association ("ABA")'s section on Real Property, Probate, and Trust Law in 1946. In 1962, the Section on Real Property, Probate, and Trust Law, along with National Conference of Commissioners on Uniform State Laws began work on what was to become the original UPC. The National Conferences and the ABA's House of Delegates approved the UPC in 1969.
The 1969 UPC was an attempt to modernize some of the traditional rules and provide a degree of uniformity for the American law …
Deodand, Brian L. Frye
Deodand, Brian L. Frye
Law Faculty Scholarly Articles
Law is a funny thing. Nobody really knows what it is. And there’s so much of it! If you started reading the United States Code out loud today, you’d be hoarse before you got to Title 17. Even still, you’d barely be getting started. The Library of Babel has nothing on the mountain of laws we’ve already got or the avalanche we keep creating. No one could possibly read them all, let alone remember what they say. What a conundrum!
And yet, as a practical matter, we still seem to have a pretty good idea of what the law expects …
Causation And Apportionment Issues In Opioid Litigation, Richard C. Ausness
Causation And Apportionment Issues In Opioid Litigation, Richard C. Ausness
Law Faculty Scholarly Articles
In November 2019, an Oklahoma trial court judge, sitting without a jury, ruled that Johnson & Johnson and its subsidiary Janssen Pharmaceuticals were guilty of creating a public nuisance because their production and marketing of prescription opioid painkillers significantly contributed to the current opioid epidemic in the State of Oklahoma. The judge also held that Johnson & Johnson must contribute $65 million to pay for the State's program to abate this nuisance. Although the case has been appealed, it is significant because it was the first government sponsored opioid case to actually go to trial. Although there are many issues …
Sec No-Action Letter Request, Brian L. Frye
Sec No-Action Letter Request, Brian L. Frye
Law Faculty Scholarly Articles
No abstract provided.
Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray
Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray
Law Faculty Scholarly Articles
Contracts have always relied on text first, foremost, and usually exclusively. Yet, this approach leaves many users of contracts in the dark as to the actual meaning of the transactional documents and instruments they enter into. The average contract routinely uses language that only lawyers, law-trained readers, and highly literate persons can truly understand.
There is a movement in the law in the United States and many other nations called the visualization of law movement that attempts to bridge these gaps in contractual communication by using highly visual instruments. In appropriate circumstances, even cartoons and comic book forms of sequential …
A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye
A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye
Law Faculty Scholarly Articles
For numberless generations, jurisprudes waged total war in the
conflict among textualism, intentionalism, and purposivism.
Textualists insisted that courts must interpret statutes based on the
meaning of their text, intentionalists insisted on the intention of the
legislature, and purposivists insisted on the purpose of the statute.
Eventually, textualism prevailed. Courts universally recognize
that they are obligated to interpret statutes in light of their text, or
at least pretend that the text of the statute determined their
interpretation. And the few remaining heretics are swiftly identified
and corrected by their superiors. As Justice Kagan famously
observed, “We’re all textualists now.” Whether …
Fair Housing And The Causation Standard After Comcast, Robert G. Schwemm
Fair Housing And The Causation Standard After Comcast, Robert G. Schwemm
Law Faculty Scholarly Articles
The Supreme Court last term held in the Comcast case that “but-for” causation must be shown by plaintiffs under the 1866 Civil Rights Act’s § 1981 and also announced that this standard is the default position presumed to govern all other federal civil rights statutes. This Article deals with how Comcast’s but-for presumption applies to fair housing cases.
The answer is complicated, because these cases are often brought under multiple laws. For example, a Black applicant who is rejected by an apartment complex ostensibly for having inadequate income, but who believes this decision was racially motivated because the complex …
Grounding Suicide Terrorism In Death Anxiety And Consumer Capitalism, James M. Donovan
Grounding Suicide Terrorism In Death Anxiety And Consumer Capitalism, James M. Donovan
Law Faculty Scholarly Articles
This article examines an influential theory on suicide attacker motivations, the Significance Quest Theory, and suggests that this death anxiety approach can be improved by shifting its focus toward the related, but more comprehensive, Terror Management Theory. The theoretical productivity of this realignment is tested by examining the relationship between suicide attacks and one of the variables thought to trigger the underlying anxieties: the local pressures from global consumer capitalism. After describing the relationship between death anxiety and suicide terrorism generally, this article concludes by applying these insights to the ethnographic context of Egypt.
Limits Of The Rule Of Law: Negotiating Afghan “Traditional” Law In The International Civil Trials In The Czech Republic, Tomas Ledvinka, James M. Donovan
Limits Of The Rule Of Law: Negotiating Afghan “Traditional” Law In The International Civil Trials In The Czech Republic, Tomas Ledvinka, James M. Donovan
Law Faculty Scholarly Articles
Drawing on ethnographic research of judicial cases in the Czech Republic which involve the law in migrants' countries of origin, this Article outlines how multiple strategies handle encounters with the legal-cultural differences of Afghanistan in order to neutralize what may be called the “alterity” of law. The Article suggests that far from being analytical tools, concepts such as “context,” “culture,” and “customary” are strategically used by courts to neutralize unsettling aspects of foreign Afghan legalities. Further, it applies Leopold Pospíšil´s ethnological concept of legal authority as a vehicle for reinterpreting the contextual differentiation of Afghan “traditional” law as an alternative …
Hidden Rules Of A Modest Antitrust, Ramsi Woodcock
Hidden Rules Of A Modest Antitrust, Ramsi Woodcock
Law Faculty Scholarly Articles
Reforming antitust’s rule of reason by shifting burdens of proof to defendants will not solve antitrust’s enforcement drought. For the drought is due in part to the cost to enforcers of identifying rule of reason cases to bring and not just to the cost of winning the cases that enforcers do bring. Enforcement costs matter because enforcers’ budgets are limited—they have failed for a long time to keep up with GDP—and the rule of reason’s emphasis on case-specific effects makes it costly for enforcers to identify good cases to bring. The Supreme Court’s adoption of the rule of reason approach …
Corporate Misconduct In The Pharmaceutical Industry, Richard C. Ausness
Corporate Misconduct In The Pharmaceutical Industry, Richard C. Ausness
Law Faculty Scholarly Articles
Sadly, many pharmaceutical companies have engaged in unethical or illegal behavior. The current opioid crisis is the most recent example of misconduct by pharmaceutical companies. Moreover, this pattern of conduct is neither rare, nor recent. Instead, it is long-standing and pervasive in nature. Furthermore, unlike wrongdoing by other businesses that cause primarily economic or environmental harm, wrongdoing by pharmaceutical companies, like that of asbestos or tobacco companies, may cause personal injuries and death on a large scale.
Keeping It In The Family: The Pitfalls Of Naming A Family Member As A Trustee, Richard C. Ausness
Keeping It In The Family: The Pitfalls Of Naming A Family Member As A Trustee, Richard C. Ausness
Law Faculty Scholarly Articles
This article is concerned with trusts in which either the settlor, trustee, or beneficiaries are members of the same family. For example, the settlors may be the parents, grandparents, or other relatives of the trust beneficiaries. Trustees may be settlors, parents of the beneficiaries, children of the settlor, and other family members, while beneficiaries may include either the settlor, the settlor's spouse, children, grandchildren, or other relatives of the settlor. These persons will be referred to as "family members."
Virtually all family members have disagreements with other family members and sometimes these disagreements can destroy relationships and even lead to …
Taxing The Ivory Tower: Evaluating The Excise Tax On University Endowments, Jennifer Bird-Pollan
Taxing The Ivory Tower: Evaluating The Excise Tax On University Endowments, Jennifer Bird-Pollan
Law Faculty Scholarly Articles
The Tax Cuts and Jobs Act of 2017 introduced the first-ever excise tax imposed on the investment income of university endowments. While it is a relatively small tax, this new law is a first step towards the exploration of taxing non-profit entities on the vast sums of wealth they hold in their endowments. In this essay I take the new tax as a starting place for investigating the justification for tax exemption for universities and thinking through the consequences of changing our approach, both in the form of the new excise tax and possible alternatives. There remain reasons to be …
"How The Sausage Gets Made": Voter Id And Deliberative Democracy, Joshua A. Douglas
"How The Sausage Gets Made": Voter Id And Deliberative Democracy, Joshua A. Douglas
Law Faculty Scholarly Articles
In 2020, Kentucky became the twentieth state to enact a law that requires voters to show a photo ID at the polls to vote. Yet the law is one of the most mild and reasonable photo ID laws to pass in recent memory. This article tells the inside story of how that law came to be. And it presents the broader story of how the process of crafting legislation, when employing a theory of deliberative democracy, can increase legitimacy and produce better results for the functioning of our elections. The Kentucky story therefore offers important lessons for election law policy …
Bring The Masks And Sanitizer: The Surprising Bipartisan Consensus About Safety Measures For In-Person Voting During The Coronavirus Pandemic, Joshua A. Douglas, Michael A. Zilis
Bring The Masks And Sanitizer: The Surprising Bipartisan Consensus About Safety Measures For In-Person Voting During The Coronavirus Pandemic, Joshua A. Douglas, Michael A. Zilis
Law Faculty Scholarly Articles
Requiring masks at the polls might implicate a clash between two vital rights: the constitutional right to vote and the right to protect one’s health. Yet the debate during the 2020 election over requirements to wear a mask at the polls obscured one key fact: a majority of Americans supported a mask mandate for voting. That is the new insight we provide in this Essay: when surveyed, Americans strongly supported safety measures for in-person voting, and that support was high regardless of partisanship. One implication of our results is that by making some widely supported safety modifications, state election officials …
Question #1: Is There A Gender Gap In Performance On Multiple Choice Exams? A. Always B. Never C. Most Of The Time, Jane Bloom Grisé
Question #1: Is There A Gender Gap In Performance On Multiple Choice Exams? A. Always B. Never C. Most Of The Time, Jane Bloom Grisé
Law Faculty Scholarly Articles
The correct answer to Question #1 is C. Most of the time, women score lower than men on multiple-choice exams. Question #2: How did you become interested in this topic?
A. The author likes to create multiple-choice tests.
B. The author does well on multiple-choice tests.
C. The author unexpectedly discovered this disparity.
The correct answer is C. I discovered this disparity unexpectedly and was surprised to find that women scored lower than men on multiple-choice exams and that multiple-choice exams underpredicted women's academic performance.
While educators might assume that different types of assessments such as multiple-choice and essays are …
Invoking Criminal Equity's Roots, Cortney Lollar
Invoking Criminal Equity's Roots, Cortney Lollar
Law Faculty Scholarly Articles
Equitable remedies have begun to play a critical role in addressing
some of the systemic issues in criminal cases. Invoked when other
solutions are inadequate to the fair and just resolution of the case,
equitable remedies, such as injunctions and specific performance,
operate as an unappreciated and underutilized safety valve that
protects against the procedural strictures and dehumanization that are
hallmarks of our criminal legal system. Less familiar equitable-like
legal remedies, such as writs of mandamus, writs of coram nobis, and
writs of audita querela, likewise serve to alleviate fundamental errors
in the criminal process. Several barriers contribute to the …
Nfts And The Art World - What's Real, And What's Not, Michael D. Murray
Nfts And The Art World - What's Real, And What's Not, Michael D. Murray
Law Faculty Scholarly Articles
This Article explores the reality and mythology of NFTs in art law and in the art world by unpacking six myths, misconceptions, and poorly understood truths about NFTs that prevent persons, and particularly art law lawyers, from understanding the role NFTs are playing and could play in the art world and beyond. The Article discusses the legal and financial attributes and potentialities of NFTs for artists, galleries, dealers, investors, museums, and, most especially, for lawyers who advise the players in the art world. The six myths or misconceptions are:
-Myth 1: NFTs are artworks.
-Myth 2: NFTs create a false …