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Legal Realism: Unfinished Business, Ramsi A. Woodcock Feb 2019

Legal Realism: Unfinished Business, Ramsi A. Woodcock

Law Faculty Scholarly Articles

No abstract provided.


Metaphors On Trademark: A Response To Adam Mossoff, “Trademark As A Property Right”, Brian L. Frye Jan 2019

Metaphors On Trademark: A Response To Adam Mossoff, “Trademark As A Property Right”, Brian L. Frye

Law Faculty Scholarly Articles

No abstract provided.


Precedent, Three-Judge District Courts, And The Law Of Democracy, Joshua A. Douglas Jan 2019

Precedent, Three-Judge District Courts, And The Law Of Democracy, Joshua A. Douglas

Law Faculty Scholarly Articles

As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, is a Supreme Court ruling to summarily affirm a three-judge district court’s decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court’s decision was correct? Second, must a three-judge district court follow ...


State Automatic Enrollment Iras After The Trump Election: Are They Preempted By Erisa?, Kathryn L. Moore Jan 2019

State Automatic Enrollment Iras After The Trump Election: Are They Preempted By Erisa?, Kathryn L. Moore

Law Faculty Scholarly Articles

In recent years, a number of states have sought to close the retirement savings funding gap by enacting legislation mandating that employers that do not sponsor a voluntary pension plan for their employees automatically enroll their employees in a state-administered IRA program. This Article focuses on the most serious legal challenge these programs face: ERISA preemption.

The Article begins by providing an overview of the state automatic enrollment IRA programs. It then discusses a regulatory safe harbor created for these programs in 2016 and disapproved under the Congressional Review Act in 2018. It then turns to the question whether, in ...


Neoformalist Constitutional Construction And Public Employee Speech, Scott R. Bauries Dec 2018

Neoformalist Constitutional Construction And Public Employee Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article examines, evaluates, and prescribes improvements to a familiar form of constitutional construction favored by neoformalists—the preference for rules over standards. Constitutional law development can be understood as being composed of two judicial tasks—interpretation and construction. Judicial interpretation of the Constitution involves determining the semantic meaning of the words contained in the document. Once that semantic meaning is determined, the interpreted meaning must be constructed into legal doctrine for application in court. Sometimes, that construction involves the articulation of the legal doctrines based on the interpreted constitutional text that will govern a particular case and those similar ...


Monuments Of Folly: How Local Governments Can Challenge Confederate "Statue Statutes", Zachary A. Bray Oct 2018

Monuments Of Folly: How Local Governments Can Challenge Confederate "Statue Statutes", Zachary A. Bray

Law Faculty Scholarly Articles

Monuments to the Confederacy and former Confederate figures have been prominently displayed in parks, courthouse squares, and other public spaces of many American towns and cities for many years. Their history is inextricably linked with patterns of institutionalized racism, including but not limited to the rise of Jim Crow and resistance to the integration of public schools. In recent years, the continued display of these monuments has given rise to intense controversy and outbreaks of violence. In response, some local governments have sought to remove or modify Confederate monuments in public spaces, but in several states, local governments face statutory ...


Christmas In July: A Response To David Fagundes, Why Less Property Is More, Brian L. Frye Aug 2018

Christmas In July: A Response To David Fagundes, Why Less Property Is More, Brian L. Frye

Law Faculty Scholarly Articles

A response to David Fagundes, Why Less Property Is More: Inclusion, Dispossession, & Subjective Well-Being, 103 Iowa L. Rev. 1361 (2018).


The Obsolescence Of Advertising In The Information Age, Ramsi Woodcock Jun 2018

The Obsolescence Of Advertising In The Information Age, Ramsi Woodcock

Law Faculty Scholarly Articles

The vast amount of product information available to consumers through online search renders most advertising obsolete as a tool for conveying product information. Advertising remains useful to firms only as a tool for persuading consumers to purchase advertised products. In the mid-twentieth century, courts applying the antitrust laws held that such persuasive advertising is anticompetitive and harmful to consumers, but the Federal Trade Commission (FTC) was unable to pursue an antitrust campaign against persuasive advertising for fear of depriving consumers of advertising’s information value. Now that the information function of most advertising is obsolete, the FTC should renew its ...


The Antitrust Duty To Charge Low Prices, Ramsi Woodcock May 2018

The Antitrust Duty To Charge Low Prices, Ramsi Woodcock

Law Faculty Scholarly Articles

Over the past forty years, antitrust has come to embrace a goal of consumer welfare maximization that cannot be achieved solely through condemnation of collusive or exclusionary conduct. To address cases in which firms achieve the power to raise prices and harm consumers without engaging in collusive or exclusionary conduct, antitrust should impose a general duty on businesses to charge a price no higher than economic cost. Courts would not need to set prices to enforce this duty, because violations would be punishable only by nominal damages, and shame, rather than by an injunction setting a reasonable price. Although the ...


Fintech's Double Edges, Christopher G. Bradley Jan 2018

Fintech's Double Edges, Christopher G. Bradley

Law Faculty Scholarly Articles

The pace of change in financial technologies has quickened due to the rapid advances in technology from the late 1990s through today, exemplified by the advance of handheld devices and applications and the pervasiveness of the Internet in every facet of commerce. New financial technologies--commonly identified by the portmanteau "FinTech" or "fmtech"--have already reshaped many commercial practices that affect businesses and consumers, and they are likely to change many more.

The increasing availability and sophistication of FinTech offers both promises and perils. Artificial intelligence-driven algorithms purport to improve access to credit on "objective" criteria but may sometimes reinforce longstanding ...


Invention Of A Slave, Brian L. Frye Jan 2018

Invention Of A Slave, Brian L. Frye

Law Faculty Scholarly Articles

On June 10, 1858, the Attorney General issued an opinion titled Invention of a Slave, concluding that a slave owner could not patent a machine invented by his slave, because neither the slave owner nor his slave could take the required patent oath. The slave owner could not swear to be the inventor, and the slave could not take an oath at all. The Patent Office denied at least two patent applications filed by slave owners, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. But it ...


Discretionary Trusts: An Update, Richard C. Ausness Jan 2018

Discretionary Trusts: An Update, Richard C. Ausness

Law Faculty Scholarly Articles

In the past, settlors tended to limit a trustee’s discretion by setting forth a specific formula for the distribution of trust assets. Nowadays, however, settlors often prefer to vest more discretion in their trustees. This is partly due to the fact that beneficiaries tend to live longer and, therefore, trusts inevitably last longer, thereby requiring trustees to respond to changing conditions. In addition, settlors often believe that vesting increased discretion on the part of trustees will discourage beneficiaries from bringing expensive and disruptive challenges to their decisions.

Nevertheless, the trend toward increased discretion is not without its problems. First ...


Criminalizing (Poor) Fatherhood, Cortney E. Lollar Jan 2018

Criminalizing (Poor) Fatherhood, Cortney E. Lollar

Law Faculty Scholarly Articles

States prosecute and incarcerate thousands of fathers every year for failing to pay their child support obligations. Ostensibly, these prosecutions aim to foster the health and well-being of children without requiring the child’s mother to bear the costs of raising the child alone. What may appear on the surface to be a system that balances out inequities is actually a deeply flawed government program—one that promotes criminal recidivism and reinforces the poverty of indigent fathers. Contrary to the common image of a “deadbeat dad” raking in money and staying on the lam to avoid helping a mother raise ...


New Art For The People: Art Funds & Financial Technology, Brian L. Frye Jan 2018

New Art For The People: Art Funds & Financial Technology, Brian L. Frye

Law Faculty Scholarly Articles

Wealthy people have invested in art since time immemorial. But the modem art market emerged only in the late nineteenth century, as private wealth gradually spread to the bourgeoisie. As the art market grew and the most desirable artworks became extremely valuable, individuals and institutions began to form "art funds" to invest in this promising new asset class. In 1904, a group of Parisian art collectors formed La Peau d'Ours, the first private art investment club. Between 1974 and 1980, the British Rail Pension Fund invested £40 million in art. And in the 2000s, many private investment companies created ...


The Lion, The Bat & The Thermostat: Metaphors On Consciousness, Brian L. Frye Jan 2018

The Lion, The Bat & The Thermostat: Metaphors On Consciousness, Brian L. Frye

Law Faculty Scholarly Articles

No abstract provided.


The Ballad Of Harry James Tompkins, Brian L. Frye Jan 2018

The Ballad Of Harry James Tompkins, Brian L. Frye

Law Faculty Scholarly Articles

At about 2:30 a.m. on Friday, July 27, 1934, William Colwell of Hughestown, Pennsylvania was awakened by two young men banging on his front door. When he went downstairs, they told him that someone had been run over by a train. Colwell looked out his side window. In the moonlight, he saw someone lying on the ground near the railroad tracks. He went back upstairs and told his wife that there had been an accident. She told him “not to go out, that them fellows was crazy,” but he dressed and went out to help anyway. Colwell's ...


"It's Your #!": A Legal History Of The Bacardi Cocktail, Brian L. Frye Jan 2018

"It's Your #!": A Legal History Of The Bacardi Cocktail, Brian L. Frye

Law Faculty Scholarly Articles

The Bacardi cocktail was the Cosmopolitan of the Jazz Age: a sweet and sour tipple with an attractive rosy hue and a deceptively alcoholic punch. Created in about 1913, and named after Bacardi rum, it soon became one of the most popular cocktails in America. Prohibition only increased its popularity, as wealthy Americans vacationing in Cuba enjoyed Bacardi cocktails and demanded them at speakeasies and at home. Of course, every good speakeasy offered white rum (or a passable facsimile thereof) and called it “bacardi” no matter who made it. After Repeal, the popularity of the Bacardi cocktail continued to rise ...


A Revealed Preferences Approach To Ranking Law Schools, Brian L. Frye, Christopher J. Ryan Jr. Oct 2017

A Revealed Preferences Approach To Ranking Law Schools, Brian L. Frye, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

The U.S. News & World Report (U.S. News) “Best Law Schools Rankings” defines the market for legal education. Law schools compete to improve their standing in the U.S. News rankings and fear any decline. But the U.S. News rankings are controversial, at least in part because they rely on factors that are poor proxies for quality, like peer reputation and expenditures per student. While many alternative law school rankings exist, none have challenged the market dominance of the U.S. News rankings. Presumably the U.S. News rankings benefit from a first-mover advantage, other rankings fail to ...


An Empirical Study Of University Patent Activity, Brian L. Frye, Christopher J. Ryan Oct 2017

An Empirical Study Of University Patent Activity, Brian L. Frye, Christopher J. Ryan

Law Faculty Scholarly Articles

Since 1980, a series of legislative acts and judicial decisions have affected the ownership, scope, and duration of patents. These changes have coincided with historic increases in patent activity among academic institutions.

This article presents an empirical study of how changes to patent policy precipitated responses by academic institutions, using spline regression functions to model their patent activity. We find that academic institutions typically reduced patent activity immediately before changes to the patent system, and increased patent activity immediately afterward. This is especially true among research universities. In other words, academic institutions responded to patent incentives in a strategic manner ...


Big Data, Price Discrimination, And Antitrust, Ramsi Woodcock Aug 2017

Big Data, Price Discrimination, And Antitrust, Ramsi Woodcock

Law Faculty Scholarly Articles

Antitrust law today guarantees a particular distribution of wealth between consumers and firms by promoting competition in some markets, but allowing firms to retain pricing power in other markets, such as those in which a firm has achieved power through oligopoly or by fielding a superior product. By giving firms the power to identify individual consumers at the point of sale and determine the maximum price that each consumer can be made to pay for a product, big data will soon allow firms with pricing power to charge each consumer the highest price that the consumer is able to pay ...


Criminalizing Pregnancy, Cortney E. Lollar Jul 2017

Criminalizing Pregnancy, Cortney E. Lollar

Law Faculty Scholarly Articles

The state of Tennessee arrested a woman two days after she gave birth and charged her with assault of her newborn child based on her use of narcotics during her pregnancy. Tennessee's 2014 assault statute was the first to explicitly criminalize the use of drugs by a pregnant woman. But this law, along with others like it being considered by legislatures across the country, is only the most recent manifestation of a long history of using criminal law to punish poor mothers and mothers of color for their behavior while pregnant. The purported motivation for such laws is the ...


The Right To Vote Under Local Law, Joshua A. Douglas Jul 2017

The Right To Vote Under Local Law, Joshua A. Douglas

Law Faculty Scholarly Articles

A complete analysis of the right to vote requires at least three levels of inquiry: the U.S. Constitution and federal law, state constitutions and state law, and local laws that confer voting rights for municipal elections. But most voting rights scholarship focuses on only federal or state law and omits any discussion of the third category. This Article—the first to explore in depth the local right to vote—completes the trilogy. Cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. Berkeley ...


Local Democracy On The Ballot, Joshua A. Douglas May 2017

Local Democracy On The Ballot, Joshua A. Douglas

Law Faculty Scholarly Articles

This Essay, focusing particularly on voter-backed local election rules, proceeds in three parts. Part I highlights how local laws play a significant role in dictating voting rights and election rules. Too often election law scholars focus solely on federal or state law. But local laws are also important in defining the right to vote and providing rules for our democracy. New local election law experiments in one place can highlight innovative reforms that other cities and states may eventually adopt. This avenue to election law reform is particularly important given the current political climate.

Part II considers local ballot initiatives ...


Equitable Resale Royalties, Brian L. Frye Apr 2017

Equitable Resale Royalties, Brian L. Frye

Law Faculty Scholarly Articles

A “resale royalty right” or droit de suite(resale right) is a legal right that gives certain artists the right to claim a percentage of the resale price of the artworks they created. The Berne Convention for the Protection of Literary and Artistic Works and the Tunis Model Law on Copyright for Developing Countries provide for an optional resale royalty right. Many countries have created a resale royalty right, although the particulars of the right differ from country to country. But the United States has repeatedly declined to create a federal resale royalty right, and a federal court recently held ...


The Case For Federal Pre-Emption Of State Blue Sky Laws, Rutheford B. Campbell Jr. Mar 2017

The Case For Federal Pre-Emption Of State Blue Sky Laws, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

State blue sky laws—state laws that regulate a company’s offer and sale of securities—are a substantial barrier to businesses’ efficient access to external capital. The registration provisions in state blue sky laws have been especially harmful to small businesses, a vital component of our economy that may account for 30% of the nation’s employment. The costs associated with complying with more than fifty separate and independent obligations to register securities often exceed what small businesses can pay and thus may foreclose small businesses from the capital market. At the same time, requiring small businesses to comply ...


An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr. Jan 2017

An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright ...


Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr. Jan 2017

Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

"Forum selling” is jurisdictional competition intended to attract litigants. While consensual forum selling may be beneficial, non-consensual forum selling is harmful because it encourages jurisdictions to adopt an inefficient pro-plaintiff bias. In the last 20 years, the Eastern District of Texas has adopted an aggressive and remarkably successful policy of non-consensual forum selling in patent infringement actions. In 2016, 44% of all patent infringement actions were filed in the Eastern District of Texas, and 93% of them were filed by patent assertion entities or “patent trolls.”

In December 2016, the Supreme Court granted certiorari in TC Heartland v. Kraft, to ...


Keeping Up With New Legal Titles, Franklin L. Runge Jan 2017

Keeping Up With New Legal Titles, Franklin L. Runge

Law Faculty Scholarly Articles

In this book review, Franklin L. Runge discusses The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age (2016) by Laura K. Donohue.


Incidental Intellectual Property, Brian L. Frye Jan 2017

Incidental Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

As Mark Twain apocryphally observed, “History doesn’t repeat itself, but it often rhymes.” The history of the right of publicity reflects a common intellectual property rhyme. Much like copyright, the right of publicity is an incidental intellectual property right that emerged out of regulation. Over time, the property right gradually detached itself from the regulation and evolved into an independent legal doctrine.

Copyright emerged from the efforts of the Stationers’ Company to preserve its members’ monopoly on the publication of works of authorship. Similarly, it can be argued the right of publicity emerged from the efforts of bubblegum companies ...


Against Creativity, Brian L. Frye Jan 2017

Against Creativity, Brian L. Frye

Law Faculty Scholarly Articles

According to the Supreme Court, copyright requires both independent creation and creativity. The independent creation requirement provides that copyright cannot protect an element of a work of authorship that is copied from a previously existing work. But scholars disagree about the meaning of and justification for the creativity requirement.

The creativity requirement should be abandoned because it is irrelevant to the scope of copyrightable subject matter and distorts copyright doctrine by encouraging inefficient “creativity rhetoric.” The purpose of copyright is to encourage the production of economically valuable works of authorship, not creativity.