Law Commons^™

Google And Shifting Conceptions Of What It Means To Improve A Product, Ramsi Woodcock

Law Faculty Popular Media

Judges sometimes claim that they do not pick winners when they decide antitrust cases. Nothing could be further from the truth.

Competitive conduct by its nature harms competitors, and so if antitrust were merely to prohibit harm to competitors, antitrust would then destroy what it is meant to promote.

What antitrust prohibits, therefore, is not harm to competitors but rather harm to competitors that fails to improve products. Only in this way is antitrust able to distinguish between the good firm that harms competitors by making superior products that consumers love and that competitors cannot match and the bad firm …

The Sources And Consequences Of Political Rhetoric: Issue Importance, Collegial Bargaining, And Disagreeable Rhetoric In Supreme Court Opinions, Michael A. Zilis, Justin Wedeking

Political Science Faculty Publications

How do political actors use rhetoric after an initial policy battle? We explore factors that lead Supreme Court justices to integrate disagreeable rhetoric into opinions. Although disagreeable language has negative consequences, we posit that justices pay this cost for issues with high personal significance. At the same time, we argue that integrating disagreeable rhetoric has a deleterious effect on the institution by reducing majority coalition size. Examining opinions from 1946 to 2011 using text-based measures of disagreeable rhetoric, we model the language of opinion writing as well as explore the consequences for coalition size. Our findings suggest serious implications for …

Toward A Per Se Rule Against Price Gouging, Ramsi Woodcock

Law Faculty Scholarly Articles

Price gouging is the use of high prices to ration access to a good in unexpectedly short supply. Because sellers can always recoup their costs by choosing not to ration with price and instead allowing the good to sell out, price gouging harms consumers: it transfers wealth from consumers to firms unnecessarily. This harm to consumers could violate the antitrust laws in two ways. First, it could serve as the basis for a per se rule against algorithmic price gouging — surge pricing — because the superhuman speeds with which surge pricing algorithms respond to shortages effectively shorten the period …

Do Gun Policies Really Protect Women? A Cross-National Test Of The Relationship Between Gun Regulations And Female Homicide Victimization, Janet Stamatel, Kathleen Ratajczak, Robert Hoekstra

Sociology Faculty Publications

Globally, firearms are the most frequent means of committing homicide with young males most likely to be victimized with guns. However, within the context of intimate partner violence and family violence, females’ risk of lethal gun violence rises significantly, supporting the need to pay more attention to firearms to reduce lethal VAW. One way to protect women from firearm violence within the private sphere is to regulate access to guns based on the risk of family violence. This study examines the extent to which gun availability and gun regulations affect lethal violence against women in a relatively large sample of …

The Hidden Shortages Of The Market Economy, Ramsi Woodcock

Law Faculty Popular Media

If you think shortages—in goods like toilet paper, meat, and masks—came in with the pandemic, think again.

Shortages are periods during which demand exceeds supply, and they’re an inescapable feature of all markets, all the time.

When an investor bids up the price of Apple stock because none is available at current prices, that’s a shortage. When a homeowner receives multiple bids for her home, that’s a shortage. When there are “only three left in stock” on Amazon and four users click “buy,” that, too, is a shortage.

We don’t notice these quotidian shortages because sellers usually respond to them …

The Economics Of Shortages, Ramsi Woodcock

Law Faculty Popular Media

The price of food increased 2.6% in April, the largest single-month increase since 1974, but food industry executives are insisting that the country has enough food. So why are prices going up?

The explanation provided by the industry is that consumers are buying more than they need, creating shortages.

But a shortage is not a good excuse for increasing prices. Contrary to what you might have learned in Econ 101, there’s only one reason for which a shortage should give rise to higher prices: profiteering, as I explain in a forthcoming law review article.

If shortage were the only explanation …

The Antitrust Case For Consumer Primacy In Corporate Governance, Ramsi Woodcock

Law Faculty Scholarly Articles

Consumers have been left out of the great debate over the mission of the firm, in which advocates of shareholder value maximization face off against advocates of corporate social responsibility, who would allow management leeway to allocate profits to workers and other non-shareholder insiders of the firm. The consumer welfare standard adopted by antitrust law in the 1970s requires that the firm allocate its profits neither to shareholders nor to workers or other firm insiders. Instead, the standard requires that firms strive to have no profits at all, by charging the lowest possible prices for the best quality products. Such …

The Efficient Queue And The Case Against Dynamic Pricing, Ramsi Woodcock

Law Faculty Scholarly Articles

Surge pricing—using data and algorithms to raise prices in response to unexpected increases in demand—has spread across the economy in recent years, from Amazon, to Disney World, to commuter highways, not to mention Uber, which is infamous for surge pricing rides. Companies claim that surge pricing equilibrates supply and demand, but that is impossible, at least in the short run when demand unexpectedly outstrips supply. What surge pricing really does is to ration existing supplies based on ability to pay. That is both distributively unjust and potentially inefficient. It is also anticompetitive in the sense that it reduces the power …

The Virulence Of Free Trade, Ramsi Woodcock

Law Faculty Popular Media

Specialists know that the antitrust courses taught in law schools and economics departments have an alter ego in business curricula: the course on business strategy. The two courses cover the same material, but from opposite perspectives. Antitrust courses teach how to end monopolies; strategy courses teach how to construct and maintain them.

Strategy students go off and run businesses, and antitrust students go off and make government policy. That is probably the proper arrangement if the policy the antimonopolists make is domestic. We want the domestic economy to run efficiently, and so we want domestic policymakers to think about monopoly—and …

Chain Restaurant Calorie Posting Laws, Obesity, And Consumer Welfare, Charles J. Courtemanche, David Frisvold, David Jimenez-Gomez, Mariétou H. Ouayogodé, Michael Price

Institute for the Study of Free Enterprise Working Papers

The 2010 Patient Protection and Affordable Care Act (ACA) introduced a mandate requiring chain restaurants to post calorie counts on menus and menu boards. This paper investigates whether and why calorie posting laws work. To do so, we develop a model of calories consumed that highlights two potential channels through which mandates influence choice and outlines an empirical strategy to disentangle these alternatives. We test the predictions of our model using data from the Behavioral Risk Factor Surveillance System to compare changes in body mass index (BMI), obesity, and consumer well-being in locations that implemented calorie-posting laws between 2008 and …

When Your Plate Is Already Full: Efficient And Meaningful Outcomes Assessment For Busy Law Schools, Melissa N. Henke

Law Faculty Scholarly Articles

The American Bar Association (ABA) accreditation standards involving outcome-based assessment are a game changer for legal education. The standards reaffirm the importance of providing students with formative feedback throughout their course of study to assess and improve student learning. The standards also require law schools to evaluate their effectiveness, and to do so from the perspective of student performance within the institution’s program of study. The relevant question is no longer what are law schools teaching their students, but instead, what are students learning from law schools in terms of the knowledge, skills, and values that are essential for those …

The New Small Business Bankruptcy Game: Strategies For Creditors Under The Small Business Reorganization Act, Christopher G. Bradley

Law Faculty Scholarly Articles

Most unsecured creditors have little incentive to act energetically in bankruptcy proceedings. They are unlikely to be paid enough to make it worth the effort. Our bankruptcy law allocates much more power to debtors and to secured claimants. This Article suggests that the Act further erodes the position of most unsecured creditors. Their expected recoveries will remain too low to justify anything other than a relatively passive attitude toward the bankruptcy proceeding, and the Act lowers the protections for passive creditors.

Part I provides an overview of the major features of the Act. It explains how a subchapter V case …

Academic Law Libraries And Scholarship: Communication, Publishing, And Ranking, Dana Neacsu, James Donovan

Law Faculty Scholarly Articles

The context in which academic libraries operate is fast evolving, and the current COVID pandemic has underscored the new demands on libraries to reinvent themselves and their scholarship role. The library’s role has always been focused on scholarly dissemination and preservation, more recently by archiving their faculty work on mirror sites known as academic repositories. Libraries connect scholarship and users by offering the space for users to come and use the archived knowledge. However, if historically their role was to collect and provide secure access to sources, that role is in the midst of radical transformations.

In our age of …

The Executive's Privilege, Jonathan David Shaub

Law Faculty Scholarly Articles

Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legal binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in context of congressional oversight. In that vacuum - unconstrained by precedent - the executive branch has developed a comprehensive theory of executive privilege to support and implement prophylactic doctrines that render Congress …

Artworks As Business Entities: Sculpting Property Rights By Private Agreement, Christopher G. Bradley

Law Faculty Scholarly Articles

Modern business entities, such as LLCs, are increasingly created and deployed to accomplish customized transactions and evade legal restrictions. Rather than acting as traditional business enterprises, entities serve as tools to facilitate complex commercial transactions and surmount limitations presented by existing bodies of law. One limitation constrains the ways that private parties can agree to divide property rights—a doctrinal limitation sometimes referred to as numerus clausus. This Article shows that such limitations on the customizing of property rights by private agreement now can be surmounted by virtue of modern business entity law. After describing the key features of modern …

From 'Wonderful Grandeur' To 'Awful Things': What The Antiquitiesact And National Monuments Reveal About The Statue Statutes And Confederate Monuments, Zachary A. Bray

Law Faculty Scholarly Articles

It may be easy, at least for some people who do not live near Confederate monuments in public spaces, to assume that these monuments represent little more than links to a shameful and long-ago past. From this assumption one might then view these monuments as a sort of last stand; the atavistic echo of a country that was, but is no longer, cemented into the present by their monumental form though ultimately doomed to erode in the undefined future. But, unpleasant though it may be to consider or admit, the truth is that many remaining Confederate monuments embody aspects of …

We Are All Growing Old Together: Making Sense Of America's Monument-Protection Laws, Zachary A. Bray

Law Faculty Scholarly Articles

Monuments and the laws that protect them divide Americans today as never before. American attitudes toward monuments have always been a blend of affection, insecurity, and suspicion. But Americans are now more invested in the built and natural monuments that surround us: to be for, or against, protecting certain monuments has now become a shorthand for one’s stance on a host of cultural and political issues. These changing attitudes have thrown American monument-protection laws into sharp relief. And many local, state, and federal legislators and executive officials have taken advantage of this opportunity to exploit America’s patchwork of monument-protection laws, …

The Right To Unmarry: A Proposal, Brian L. Frye, Maybell Romero

Law Faculty Scholarly Articles

When I say I'm in love, you better believe I'm in love, L-U-V.

[April 2, 2020] BLF: This is a marriage proposal in the form of a law review article. In this Article, I observe that Maybell Romero and I are in love. I want to marry her, and I believe she wants to marry me. At least I'll find out pretty soon. But we cannot marry each other right now, because we are both currently married to other people.

Maybell and I want to end our existing marriages, and our respective spouses have even agreed to divorce. But the …

In Re: Patentability Of The Peltzer Inventions, Brian L. Frye

Law Faculty Scholarly Articles

The motion picture Gremlins (1984) stars Hoyt Wayne Axton (1938-1999) as Randall Peltzer, a prolific inventor with persistent cash-flow problems. Among other things, the motion picture discloses many of Peltzer's inventions, including the "Bathroom Buddy," the "Peltzer Smokeless Ashtray," and the "Peltzer Pet." This essay takes the form of an opinion letter evaluating the patentability ofPeltzer's inventions.

Patents & Legal Expenditures, Christopher J. Ryan, Brian L. Frye

Law Faculty Scholarly Articles

Universities are engines of innovation. To encourage further innovation, the federal government and charitable foundations give universities grants in order to enable university researchers to produce the inventions and discoveries that will continue to fuel our knowledge economy. Among other things, the Bayh-Dole Act of 1980 was supposed to encourage additional innovation by enabling universities to patent inventions and discoveries produced using federal funds and to license those patents to private companies, rather than turning their patent rights over to the government. The Bayh-Dole Act unquestionably encouraged universities to patent inventions and license their patents. Since the passage of the …

A Scholarly Life In Vistas: Marshall Shapo's Products Liability, Mary J. Davis

Law Faculty Scholarly Articles

To read and reread Professor Marshall Shapo’s products liability scholarship is to learn the important lesson of how to build a body of work that continually sees the same landscape from fresh vistas. Like watching the same landscape from different angles, during different seasons, and over several years, Professor Shapo’s vistas provide us with a remarkably vivid view of the products liability landscape over the past fifty years and beyond. In doing so, he has constructed a vision of the richness and promise of products liability law while continually reminding us to be aware of the vista from which we …

Professor Williams And The Education Debates In State Constitutional Law, Scott R. Bauries

Law Faculty Scholarly Articles

Professor Robert "Bob" Williams, whom The Honorable Jeffrey Sutton once aptly referred to as the "Dean of State Constitutional Law," has announced a well-earned retirement, leaving the world of state constitutional law teaching and scholarship without its most prominent and influential intellectual voice. Although it is clear based on mere citations to Professor William's work that he has influenced nearly every debate - and every scholar - in state constitutional law, this Essay contribution to the Festschrift in Professor William's honor outlines two strands of Professor William's work that have greatly influenced my own work.

Plagiarize This Paper, Brian L. Frye

Law Faculty Scholarly Articles

It is meet and just that I write this essay while toiling in the salt mines of academia. We academics devote our works and days to scouring those mines for ideas in the rough. Some of us discover a rich vein, but others must comb through the tailings. Whatever we find, we cut and polish until it glistens and shines. Of course, some ideas prove to be diamonds while others remain mere pebbles. But then a diamond is just a pebble that many people admire, and one person’s diamond is another’s pebble. Regardless, academics strive to find the scholarly diamond …

The Consumer Protection Ecosystem: Law, Norms, And Technology, Christopher G. Bradley

Law Faculty Scholarly Articles

In recent years, the tools consumers use to buy and borrow have changed radically. New technologies for advertising, contracting, and transacting have proliferated, and so have fierce policy debates on issues such as identity theft and online privacy; arbitration clauses and class action lawsuits; and Americans’ accumulation of debt and the unsavory practices sometimes used by collectors of it. Facing these realities, scholars, policymakers, and advocates have devoted increasing energy to this area of law. Despite its prominence, confusion persists regarding what consumer protection really is or does. Though much discussed, it remains undertheorized. In particular, analysis of consumer law …

Digital Monopoly Without Regret, Ramsi Woodcock

Law Faculty Scholarly Articles

Attacks on Amazon, Google, and Facebook have tended to ignore a key lesson of the theory of monopolistic competition: that big is not always bad. A monopolist grows large because consumers prefer the firm’s products. The only question for the antitrust laws is whether consumers prefer the monopolist’s products because the monopolist has improved its products relative to those of competitors, or because the monopolist has degraded the products of competitors without improving its own. Only product-degrading conduct is socially harmful and violative of the antitrust laws. Although a complete accounting of conduct by Amazon, Google or Facebook is not …

Flesh Markets: Sex Trafficking, Opioids, And The Legal Process To Eradicate The Demand, Blanche Cook

Law Faculty Scholarly Articles

On February 5, 2021, the University of Kentucky J. David Rosenberg College of Law, grateful steward of the community it serves, held a symposium for students, practitioners, stakeholders, and the public. The symposium, the first of its kind, examined the converging and rising tides of sex trafficking vulnerability and opioid dependency. The Kentucky Law Journal and the University of Kentucky Department of Gender and Women's Studies sponsored the symposium.

In order to provide necessary context, the following introduction briefly outlines sex trafficking and is followed by an overview of the symposium. For a more detailed review of the generous expertise …

Reflections On Moving Toward Integration And Modern Exclusionary-Zoning Cases Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

This Article has two parts: Part I presents my views on Moving Toward Integration [Richard H. Sander et al., Moving Toward Integration: The Past and Future of Fair Housing (2018)], and Part II examines one of the book’s policy recommendations for furthering residential integration—exclusionary zoning litigation—along with some of the roadblocks to this and other pro-integration efforts erected by the Trump Administration.

Outlaws, Pirates, Judges: Judicial Activism As An Expression Of Antiauthoritarianism In Anglo-American Culture, Beau Steenken

Law Faculty Scholarly Articles

This article will argue that the rejection of what scholars otherwise

view as controlling legal authority lies at the heart of judicial activism.

Furthermore, it will argue that judicial activism itself channels the

antiauthoritarian current in American culture (and in English culture

predating its importation to America). Part II will examine the extensive

scholarly writings already existing on judicial activism in order to identify

common themes and to explore to what extent scholars have arrived at a

consensus definition of judicial activism. Part III will then show that

judicial activism may better be understood within the context of law as …

Source-Of-Income Discrimination And The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

Amending the federal Fair Housing Act (“FHA”) to ban “source-of-income” discrimination has been discussed for over twenty years. During this time, a growing number of states and localities (including many of the nation’s largest cities) have taken this step by amending their fair housing laws to prohibit discrimination against Section 8 voucher holders and others based on their source of income. Meanwhile, bills proposing such an amendment to the FHA have regularly been introduced, including four in the current Congress.

Proponents of such an amendment say it would help fulfill the voucher program’s goal of providing low-income families with a …

Monumental Questions And How We Honor Them, Melynda J. Price J.D., Ph.D.

Law Faculty Scholarly Articles

We are in another moment where who and how we memorialize is being reconsidered in communities small and large. My colleague, Zachary Bray, and I proposed this symposium to the Kentucky Law Journal because the topic reflected our shared interests in the debate over memorials and which historical narrative should triumph in the public square. We arrive at the question from different intellectual paths, but the common concern is over when and how stakeholders can and will revise that narrative through the regulation of monuments. These revisions often come in the form of calls for, it not outright, removal outhouse …