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Articles 1 - 30 of 725
Full-Text Articles in Law
Reflections On Arlington Heights: Fifty Years Of Exclusionary Zoning Litigation And Beyond, Robert G. Schwemm
Reflections On Arlington Heights: Fifty Years Of Exclusionary Zoning Litigation And Beyond, Robert G. Schwemm
Law Faculty Scholarly Articles
Fifty years ago, when I was two years out of law school, I began work on a case—Metropolitan Housing Development Corp. v. Village of Arlington Heights—that was destined to take on epic proportions in the housing discrimination field. The case started with a complaint filed in 1972, shortly before I joined the plaintiffs’ legal team, and was not finally resolved until 1980, after I’d left that team to become a law professor. During the seven years that I worked on the Arlington Heights case, it produced a major Supreme Court decision on standing and the Fourteenth Amendment’s Equal Protection Clause3 …
Personalizing Prices To Redistribute Wealth In Antitrust And Public Utility Rate Regulation, Ramsi A. Woodcock
Personalizing Prices To Redistribute Wealth In Antitrust And Public Utility Rate Regulation, Ramsi A. Woodcock
Law Faculty Scholarly Articles
The information age is enabling firms with even small amounts of market power to personalize the prices they charge to each consumer in the market. Left to their own devices, firms will use this new power to increase profits by charging prices personalized to the maximum that each consumer is willing to pay. But government can also use the new power to personalize prices to equalize wealth—by insisting that firms personalize high prices to the rich and low prices to the poor—and most of the legal rules needed to do so are already in place. Both the antitrust laws and …
How To Sell Nfts Without Really Trying, Brian L. Frye
How To Sell Nfts Without Really Trying, Brian L. Frye
Law Faculty Scholarly Articles
Something is happening and we don’t know what it is. Suddenly last summer, the internet went nuts for “non-fungible tokens” or “NFTs.” In a matter of months, NFT sales swelled from a sleepy slough of the blockchain to a thundering cataract that shows no sign of slaking. Special NFTs sell for millions of dollars, and some are even securitized. It’s a big business that’s only getting bigger.
But no one seems to know why. Objectively, NFTs are useless, meaningless, and worthless. So why are people willing to pay millions of dollars for them, even begging for the opportunity? Maybe it …
The Costs Of The Punishment Clause, Cortney E. Lollar
The Costs Of The Punishment Clause, Cortney E. Lollar
Law Faculty Scholarly Articles
Criminal punishment pursuant to a facially valid conviction in a court of law is an uncontested exception to the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. After all, the Constitutional text reads, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” And yet, beginning almost immediately after the Thirteenth Amendment was adopted, states regularly employed criminal statutes to limit the movement and behaviors of those previously enslaved and subject them to slavery-type labor camps in conditions that closely mirrored slavery. Because neither the …
State Constitutions And Youth Voting Rights, Joshua A. Douglas
State Constitutions And Youth Voting Rights, Joshua A. Douglas
Law Faculty Scholarly Articles
Young voters suffer the lowest turnout rates in American elections. One study shows that younger voters face numerous barriers when attempting to cast a ballot, such as work responsibilities, not receiving an absentee ballot in time, inability to find or access their polling place, voter ID problems, or other issues. Many state election laws are a labyrinth of rules and regulations that make it more difficult to vote, especially for younger people. As one report notes, “many young voters are new voters who need to register for the first time and who may be unfamiliar with the process. Young people …
A New Methodology For The Analysis Of Visuals In Legal Works, Michael D. Murray
A New Methodology For The Analysis Of Visuals In Legal Works, Michael D. Murray
Law Faculty Scholarly Articles
The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. To date, the scholarship on visuals in legal communications has been heavily descriptive, with some forays into the ethical and practical considerations of the use of “visualized” legal works. No one has yet devised a comprehensive analytical methodology that draws upon the disciplines of visual literacy, visual cultural studies, visual rhetoric, and mise en scène analysis to evaluate …
The Ties That Bind: The Relationship Between Law Firm Growth And Law Firm Survival, Alan J. Kluegel
The Ties That Bind: The Relationship Between Law Firm Growth And Law Firm Survival, Alan J. Kluegel
Law Faculty Scholarly Articles
For the better part of the twentieth century, law firms hired, trained, and grew through a stable and predictable pattern: hire new law school graduates, monitor and evaluate their work, and pick promising attorneys from among their ranks and elevate them to partner. Rinse, lather, repeat. A combination of professional norms and organizational inertia made this approach the dominant method of growth among large corporate law firms until changes in legal market broke down these customary practices, ushering in a new era of lawyer mobility. Now, it has become commonplace for lawyers to leave for greener pastures as more law …
The Multi-Level Marketing Pandemic, Christopher G. Bradley, Hannah E. Oates
The Multi-Level Marketing Pandemic, Christopher G. Bradley, Hannah E. Oates
Law Faculty Scholarly Articles
Among the societal effects of the COVID-19 pandemic has been a sharp rise in the activities of multi-level marketing companies (MLMs). MLMs are business enterprises in which participants seek not only to sell products to friends, family, and social media contacts, but also to recruit them as MLM participants, with the promise of "building their own business from home."
False promises often pervade MLM sales pitches. Evidence shows that few participants see even a dollar of profit from their MLM work; the vast majority of recruits quickly abandon their MLM dreams and lose their investments. Yet the pitch has become …
Toxic Public Goods, Brian L. Frye
Toxic Public Goods, Brian L. Frye
Law Faculty Scholarly Articles
Everybody loves public goods. After all, they are a perpetual utility machine. Obviously, we want as many of them as possible. But what if the consumption of a public good actually decreases net social welfare? I refer to this kind of public good as a "toxic public good." In this essay, I discuss three kinds of potential toxic public goods: trolling, pornography, and ideology, and I reflect on how we might make the production of toxic public goods more efficient.
Are Cryptopunks Copyrightable?, Brian L. Frye
Are Cryptopunks Copyrightable?, Brian L. Frye
Law Faculty Scholarly Articles
Larva Labs’s CryptoPunks NFTs are iconic. Created in 2017, they were among the first NFTs on the Ethereum blockchain. Four years later, they are among the most valuable, selling for anywhere from $200,000 to millions of dollars.
The CryptoPunks collection consists of 10,000 NFTs, each of which is associated with a unique CryptoPunks image. Everyone knows who owns each CryptoPunks NFT. The Ethereum blockchain provides indelible proof. But people disagree about who owns - and who should own - the copyright in the CryptoPunks images. Most CryptoPunks NFT owners believe they should own the copyright in the image associated with …
After Copyright: Pwning Nfts In A Clout Economy, Brian L. Frye
After Copyright: Pwning Nfts In A Clout Economy, Brian L. Frye
Law Faculty Scholarly Articles
Copyright is a means to an end, not an end in itself. We created copyright because we wanted to encourage the creation and distribution of works of authorship, not because we wanted to enable copyright owners to control the use of the works they own. We stuck with copyright because it was the best tool we had, despite its flaws. Was copyright ever efficient? No. But marginal improvements matter.
Technology has changed the copyright calculus. Distribution of works of authorship gradually got cheaper and cheaper. And then the Internet made it free. But creation remained costly, even though technology helped …
Cross-Cultural Communication In A Crisis: The Universality Of Visual Narrative In The Covid-19 Pandemic, Michael D. Murray
Cross-Cultural Communication In A Crisis: The Universality Of Visual Narrative In The Covid-19 Pandemic, Michael D. Murray
Law Faculty Scholarly Articles
A primary goal of twenty-first century legal works is to communicate the law effectively to diverse audiences. Many of the most needful and most vulnerable audiences for legal information have members who lack basic literacy skills and suffer linguistic and cultural confusion from verbal textual media—namely, the printed word. Yet for centuries, legal rules and government restrictions have been communicated nearly exclusively through the printed word. Recent scholarship in visual legal rhetoric, visual literacy studies, and visual cultural studies is informed by cognitive psychology and neuroscience that all points to a solution: visual communication of the law. Visual communication is …
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 …
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.
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 …
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 …
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 …
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.
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 …
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 …
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.
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 …
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 …
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 …
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 …
Sec No-Action Letter Request, Brian L. Frye
Sec No-Action Letter Request, Brian L. Frye
Law Faculty Scholarly Articles
No abstract provided.