Law Commons^™

Big Ink V. Bigger Tech, Ramsi Woodcock

Law Faculty Popular Media

When in 2011 Paul Krugman attacked the press for bending over backwards to give equal billing to conservative experts on social security, even though the conservatives were plainly wrong, I celebrated. Social security isn’t the biggest part of the government’s budget, and calls to privatize it in order to save the country from bankruptcy were blatant fear mongering. Why should the press report those calls with a neutrality that could mislead readers into thinking the position reasonable?

Journalists’ ethic of balanced reporting looked, at the time, like gross negligence at best, and deceit at worst. But lost in the pathos …

Mise En Scene And The Decisive Moment Of Visual Legal Rhetoric, Michael D. Murray

Law Faculty Scholarly Articles

This article explores the attorney author's understanding and implementation of principles that define how visual rhetorical works fulfill the task of effective visual communication and advocacy. These principles-referred to as mise en scene-will guide the attorney in the identification or creation of works that will exhibit the "decisive moment" of effective visual rhetoric in legal contexts. In equal measure, knowledge and understanding of these principles will enable lawyers to design and use effective visuals, and to challenge or respond to the visual rhetorical works proffered by their opponents.

Explain It To Me: Tips For Effective Rule Explanation In Legal Analysis, Melissa N. Henke

Law Faculty Popular Media

The process of rule explanation is an important part of legal analysis, because it informs the legal reader, be it another attorney or a judge, how the legal rule has been applied in past cases. In other words, the rule explanation is where we use case law “to define, explain, and exemplify” the legal rule that determines the outcomes of the client’s problem or dispute. Legal writing texts refer to this discussion of past cases as case illustrations, case descriptions, or case examples, and they often devote substantial space to the topic. This column highlights four tips for improving the …

The Claims And Limits Of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions, Michael P. Healy

Law Faculty Scholarly Articles

Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article …

Advertising As Monopolization In The Information Age, Ramsi Woodcock

Law Faculty Scholarly Articles

Economists have long recognized that advertising has two main functions: to inform and to persuade. In the information age, the information function is obsolete, because consumers can get all the product information they want from a quick Google search. That makes virtually all advertising today purely persuasive in function. The courts have long recognized that purely persuasive advertising is anticompetitive, because it induces consumers to buy products that they do not really prefer, harming consumers and placing sellers of consumers’ preferred products at a competitive disadvantage. Antitrust enforcers must respond to the obsolescence of the information function of advertising by …

Time For A Fresh Look At Strict Liability For Pharmaceuticals, Mary J. Davis

Law Faculty Scholarly Articles

Part I provides a brief and basic explanation of pharmaceutical liability treatment. Part II explains the impact of federal preemption doctrine, which has dramatically limited the operation of tort law in pharmaceutical liability cases. Part III explains the parallel trends in the marketing and use of pharmaceuticals that increase the incidence of adverse drug events, affect prescribing practices, and fail to enhance informed practitioner and consumer choice in use of pharmaceuticals. Part IV provides support for the application of strict liability given the convergence of these trends. This Part also provides a theoretical justification for strict liability in tort for …

The Current State Of Opioid Litigation, Richard C. Ausness

Law Faculty Scholarly Articles

Opioid litigation began around the turn of the century and mostly involved unsuccessful lawsuits by addicts against the manufacturers of prescription opioids. The landscape began to change several years ago when a number of state and local governments filed lawsuits against opioid drug manufacturers, seeking damages and other relief for the social and economic consequences of widespread opioid addiction in their territory. Since then, hundreds of government entities (hereinafter referred to as "government plaintiffs") have sued the manufacturers, distributors, prescribers, retail sellers, corporate officers and physician promoters of opioid products (hereinafter referred to as "defendants"). When I began working on …

Congestion Pricing Is Class Warfare. Here's A Better Idea., Ramsi Woodcock

Law Faculty Popular Media

Plans are afoot to charge drivers to enter Manhattan. But we need a fairer way to reduce traffic.

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

Law Faculty Scholarly Articles

No abstract provided.

The Elephant In The Market Power Debate, Ramsi Woodcock

Law Faculty Popular Media

Profits are the ultimate sign of market power. But for the past 40 years, economists and antitrust practitioners have disparaged the measurement of profit margins as unreliable. That needs to change, and new scholarship showing rising margins across the economy is leading the way.

Art In The Age Of Contractual Negotiation, Christopher G. Bradley, Brian L. Frye

Law Faculty Scholarly Articles

This paper explores the function and purpose of the Artist’s Contrast as a legal document—but not from the perspective of legal enforceability, which is how legal effectiveness is traditionally measured. Rather this paper tells the story of a document that relies upon hallmarks of law (legal language, formality, specificity, and so on) in order to express and attempt to consolidate particular views on artists, artworks, the collectors to whom they sell, and the markets in which they sell. This powerful connection inevitably continues past the moment of sale, and the Artist’s Contract can be read as an attempt to rearrange …

Disrupting Secured Transactions, Christopher G. Bradley

Law Faculty Scholarly Articles

Article 9 of the Uniform Commercial Code (UCC) governs secured transactions in personal property in all fifty states and has been lauded as “the most successful commercial statute ever.” But while Article 9 has facilitated commerce and economic growth, it remains complicated and inefficient in numerous respects. Its weaknesses are well known but have been considered necessary evils, accepted because no better approaches were available. But just as the UCC was motivated initially by the idea of streamlining the law to accommodate modern commerce, now that goal should motivate revision of the UCC itself.

This Article proposes to remove and …

Too Much, Too Soon? Obergefell As Applied Equality Practice, James M. Donovan, Alyssa Oakley Milby

Law Faculty Scholarly Articles

Abrupt cultural change inevitably arouses anxieties, and often those fears provoke a retrograde reaction seeking to preserve the familiar status quo. When the world by which we define ourselves undergoes unexpected transitions, especially in directions that contradict the comfortable taken-for-granted assumptions that had been earlier enjoyed, we feel threatened. One needs only recall how the new standards of racial equality announced in Brown I and Brown II elicited virulent protests as some districts chose to shutter all public schools rather than have them become racially integrated. In the shadow of such traumas, it may seem an obvious lesson that progress …

Pragmatism Vs. Principle: Bankruptcy Appeals And Equitable Mootness, Christopher W. Frost

Law Faculty Scholarly Articles

Bankruptcy reorganizations are often thought to present unique problems requiring specialized doctrines. Equitable mootness is one such doctrine. This judge-made prudential limitation on appeal rights permits reviewing courts to dismiss otherwise justiciable appeals of bankruptcy court confirmations of reorganization plans. It applies where granting relief would disrupt the implementation of the plan or would harm reliance interests of parties affected by the plan.

Chapter 11 reorganizations present complex multilateral negotiation problems. The bankruptcy represents a general default, pitting stakeholder against stakeholder in conflicts that require a global settlement. The plan of reorganization provides that global settlement through an interconnected web …

Stop Traffic: Using Expert Witnesses To Disrupt Intersectional Vulnerability In Sex Trafficking Prosecutions, Blanche Cook

Law Faculty Scholarly Articles

Sex trafficking thrives on intersectional inequality and reinforcing

layers of vulnerability. Sex trafficking exists on a continuum of

sexualized violence, from microaggressive sexual harassment to

macroaggressive gang rapes, all of which create vulnerability in the

victim and perfect sovereignty in the perpetrator. Sexualized violence

performs power, as it is raced, classed, and gendered. Power not only

requires performance, but it necessitates repetitive reenactments of

domination in order to normalize its compulsive and pathological nature.

Lynchings, police shootings, gang rapes, and sex trafficking are all

performances of power on vulnerable bodies through which power

perfects itself. The same inequality that creates …

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 …

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, as mandatory …

State And Local Laws Banning Source-Of-Income Discrimination, Robert G. Schwemm

Law Faculty Scholarly Articles

Most states and many localities have civil rights laws that are substantially equivalent to the federal Fair Housing Act ("FHA"),' which means they at least ban discrimination based on the seven factors outlawed by the FHA (i.e., race, color, religion, national origin, sex, familial status, and disability). Many of these state and local laws also include other protected classes, such as age, marital status, sexual orientation, and source of income.

This Article reviews state and local efforts to outlaw source-of-income discrimination.4 (For its part, Congress currently has multiple bills before it that would add such a prohibition to the FHA.) …

A "Mere Expectancy?" What Rights Do Beneficiaries Of A Revocable Trust Have Prior To The Death Of The Settlor?, Richard C. Ausness

Law Faculty Scholarly Articles

Revocable trusts became a popular form of a will substitute in the 1960s and remain so to this day. If the trust is funded, the settlor typically retains the right to receive income from the trust, the right to invade the trust principal, and the right to modify the terms of the trust. In addition, the settlor may serve as trustee or may appoint a third-party trustee. At the settlor's death, the trust assets, which may also include property transferred to the trust from the settlor's probate estate by means of a pour-over provision in the will, will be distributed …

Revising The Tax Law: The Tcja And Its Place In The History Of Tax Reform, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

Tax reform in the United States seems like a nearly unending process.

Despite this nearly constant tweaking of the law, there has not been a major

revision of the tax law in the U.S. since the bipartisan efforts that led to the

1986 tax reform. The law known as the Tax Cuts and Jobs Act (or "TCJA")

of 2017 (which most commentators continue to call it, and which title I will

use here, although the title was not formally enacted as part of the bill, leaving

the bill without an official name) represents the first major piece of tax

legislation …

The 2019 Revealed-Preferences Ranking Of Law Schools, Christopher J. Ryan, Brian L. Frye

Law Faculty Scholarly Articles

In 2017, we published A Revealed-Preferences Ranking of Law Schools, which presented the first (intentionally) objective ranking of law schools. Other law school rankings are subjective because their purpose is to tell prospective law students where to matriculate. Our “revealed preferences” ranking is objective because its purpose is to ask where prospective law students actually choose to matriculate. In other words, subjective rankings tell students what they should want, but our objective ranking reveals what students actually want. These rankings were originally based on an average of the previous five years of LSAT and GPA quartile and median averages …

Secured Credit And Effective Entity Priority, Christopher W. Frost

Law Faculty Scholarly Articles

The historical and doctrinal development of secured transactions and bankruptcy law has created a priority system that is asset based. Secured creditor priority is tied to the value of specific assets that constitute the secured creditor’s collateral and not to the value of the debtor itself. And yet, in corporate bankruptcy cases, lenders and their attorneys often assert broad claims to the entire enterprise value of the entity—that is, to the present value of the cash flows that the entity will generate as a going concern. The doctrinal basis for such claims is often unstated, however, and several commentators have …

Perversity As Rationality In Teacher Evaluation, Scott R. Bauries

Law Faculty Scholarly Articles

Rational basis review is broken. Consider a vignette: Imagine a student, Lisa, who is about to graduate high school. Lisa has already completed all of the graduation course requirements early and is spending her time during her senior year taking interesting electives and dual-enrollment college courses. The state has a statute that requires school districts to deny a diploma to any student “who, during the final year of school attendance, fails to achieve a passing score on the state-approved, end-of-course exams in the courses of Language Arts, Mathematics, Science, and Social Studies in which that student is then-currently enrolled.”

As …

Reviving Criminal Equity, Cortney Lollar

Law Faculty Scholarly Articles

Recent scholarship has begun to take note of a resurgence of equity in civil cases. Due to a long-accepted premise that equity does not apply in criminal cases, no one has examined whether this quiet revival is occurring in criminal jurisprudence as well. After undertaking such an investigation, this Article uncovers the remarkable discovery that equitable remedies, including injunctions and specific performance, are experiencing a resurgence in both federal and state criminal jurisprudence. Courts have granted equitable relief in a range of scenarios, providing reprieve from unconstitutional bail and probation practices and allowing for an appropriate remedy to ineffective assistance …

Johnny Appleseed: Citizenship Transmission Laws And A White Heteropatriarchal Property Right In Philandering, Sexual Exploitation, And Rape (The Whp) Or Johnny And The Whp, Blanche Cook

Law Faculty Scholarly Articles

Title 8, United States Code, Section 1409-one of this country's

citizenship transmission laws-creates a white heteropatriarchal property right

in philandering, sexual exploitation, and rape (the "WHP"). Section 1409

governs the transmission of citizenship from United States citizens to their

children, where the child is born abroad, outside of marriage, and one parent is a

citizen and the other is not. Section 1409, however, draws a distinct gender

distinction between women and men: An unwed female American citizen who

births a child outside the United States, fathered by a foreign man, automatically

transmits citizenship to her child. An unwed male American …