Law Commons^™

Fowl Play And Lame Ducks: How A Three-Headed Circuit Split Confuses Century-Old Migratory Bird Protections, Omer Arain

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Policy Brief, Zachary Owen

Libraries Award for Undergraduate Scholarship

The US grapples with a housing crisis, exacerbated in part by a shortage of conventional mortgage loans. Data from 2020 reveals a severe racial disparity, with 27.1% of Black mortgage applicants denied compared to only 13.6% of White mortgage applicants. These denial trends are highly correlated with homeownership rates. Current trends in homeownership by race mirror or exceed those present during the discriminatory practices of the 1960s. Lenders often cite low credit scores and high debt-to-income ratios as grounds for denial. Therefore, proposed solutions include mandating the inclusion of rental payment history in credit scores, offering free homebuying education, and …

A Critical Assessment Of The First Step Act's Recidivism-Reduction Measures, Raquel Wilson

Law Faculty Scholarly Articles

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually. The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons …

Tools Do Not Create: Human Authorship In The Use Of Generative Artificial Intelligence, Michael D. Murray

Law Faculty Scholarly Articles

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so.

The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the …

Media + Vigilante Violence: The Formula For American Atrocity, Tiffany D. Atkins

Law Faculty Scholarly Articles

This Article provides an overview of the international and domestic responses to media-fueled violence and demonstrates how both legal systems have failed to provide meaningful protections for Black Americans from vigilante violence and atrocity. Part I explores the history of media as a propaganda tool against underrepresented groups, detailing how it has promoted atrocity domestically and internationally. There are parallels between the historical and contemporary use of media as a method to fuel atrocity against minority groups; illustrating these examples indicates the continued risk of violence and atrocity faced by Black Americans due to these models of persuasive communication. Part …

A Major Wrong On A Private Right Of Action Under The Voting Rights Act, Joshua A. Douglas, Macin Graber

Law Faculty Scholarly Articles

In Brnovich v. Democratic National Committee, Justice Neil Gorsuch posited in a short concurrence that Section 2 of the Voting Rights Act (“VRA”) does not confer a private right of action. That idea seemingly came out of nowhere, as Supreme Court precedent was clear and no one had suggested that the VRA did not allow private parties to bring suit. Justice Gorsuch’s one-paragraph concurrence was both unsupported and wrong. Even the single case he cited did not support his proposition.

An Arkansas district court and then the Eighth Circuit, however, followed Justice Gorsuch’s lead, ruling that only the federal Department …

Deepfakes And Dog Toys: First Amendment Defenses Under The Rogers Test After Jack Daniel’S V. Vip Products, Michael D. Murray

Law Faculty Scholarly Articles

Given that deepfakes are almost always associated with expression of some kind, any attempt to litigate or regulate deepfakes will require the consideration of the First Amendment. Deepfakes implicate so many areas of law and society that a discussion of the interface of First Amendment free speech rights and deepfakes writ large would require a treatise volume with several chapters. This article is more modest: It will examine the past, present, and future use of the Rogers test in an evaluation of the application of First Amendment protections in trademark infringement cases and in legal actions traditionally associated with the …

The Fairness Model Of Legal Institutions, James M. Donovan

Law Faculty Books and Chapters

If any group is to endure over time, individual frustrations, while inevitable, must be usually experienced as acceptable, or at least tolerable. Failing that, little would prevent the losers in these conflicts from leaving or revolting, which would be cumulatively debilitating to the group. As opposed to holding law’s job to impose order and police infringers, the second approach suggests that finding the balance between group and individual desires is the ‘major difficulty of all law—the problem of really getting a fresh start in relations between litigants after disposition of a trouble-case. This is the problem not only of keeping …

The Next Frontier In Plan Fee Litigation: Health Plan Fees, Kathryn L. Moore

Law Faculty Books and Chapters

On September 11, 2006, Jerry Schlichter, a personal injury lawyer from Saint Louis, Missouri, filed some of the first lawsuits claiming that excessive fees in 401(k) plans violated ERISA’s fiduciary standards. Since then, hundreds of suits have been filed challenging retirement plan fees, and the Supreme Court has rendered two decisions in cases claiming that excessive 401(k) plan fees violated ERISA’s fiduciary standards. Since the Supreme Court issued the second decision in 2022, retirement plan excessive fee litigation may have begun to slow. There may, however, be a new frontier in plan fee litigation: health care plan fees.

This article …

The Future Is Electric: Nuclear Energy’S Role In Combating Climate Change And The Regulatory Measures To Enable Its Advancement, Autumn Clark

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

An Agricultural Plastic Crisis: How Federally Endorsed Biodegradable Plastics Could Liberate The Industry In The Eleventh Hour, Samantha Davenport

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Is The Russian-Ukrainian Conflict Finally The Tipping Point For Criminal Liability When The Environmental And Natural Resources Are Weaponized In Armed Conflict? An Analysis Of The Karachun Dam Attack, Mary Jocelyn

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Changing The Conversation Around Big Oil Climate Commitments, Hannah Thompson

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

A Legislative Call-To-Action: Applying Capture Theory To Combat The Risk Of Private Industry’S Excess Influence Over The Fda’S Regulation Of Livestock Antibiotics, Nathaniel Richey

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Inclusion For Students With Intellectual Disabilities: A Philosophical Reconstruction Of The Student To Expand Access And Its Benefits, Derek Thomas Myles Daskalakes

Theses and Dissertations--Education Sciences

This dissertation attempts a philosophical rethinking of the concept of the student in educationally relevant disability law for the sake of expanding access to general education settings for students with intellectual disabilities (ID), without committing to the approach known as full inclusion. I show that students with ID receive significantly less access to general education settings in comparison to other student populations, and that empirical studies show this to be harmful to their learning and developmental outcomes. Discussion of this problem in the inclusion literature assumes one of two positions that separately support either maintaining the status quo regarding the …

Generative And Ai Authored Artworks And Copyright Law, Michael D. Murray

Law Faculty Scholarly Articles

Generative art linked to non-fungible tokens (NFTs) is an extremely popular genre of art in the NFT universe. Many of the most famous NFT projects—CryptoPunks, Bored Ape Yacht Club, World of Women, Azuki, Chromie Squiggles, Clone X, and Moonbirds, just to name a few—involve generative art. But there is a potential copyrightability problem with generative art:

Under current United States copyright law, many examples of generative art might be held to be uncopyrightable.

Why does generative art fail in the copyrightability analysis? As discussed below, it is because the work might lack a human author. And at present, the U.S. …

Copyright Transformative Fair Use After Andy Warhol Foundation For The Visual Arts, Inc. V. Goldsmith, Michael D. Murray

Law Faculty Scholarly Articles

On May 18, 2023, the United States Supreme Court entered its opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The Court examined the work of the renowned artist Andy Warhol (Warhol), posthumously represented by his eponymously named foundation, who had incorporated a significant portion of the visual elements from Lynn Goldsmith’s photograph of the deceased rock star Prince without Goldsmith’s permission. In a 7-2 opinion, the Court held that Warhol’s use of the Goldsmith photograph was not “transformative” and thus did not constitute fair use of the photographer’s work. This article will explain and analyze …

Interbranch Equity, Jonathan Shaub

Law Faculty Scholarly Articles

In recent years, Congress has increasingly turned to the courts to challenge executive actions. In these suits, the executive branch has strenuously pressed several distinct doctrinal arguments that interbranch cases are nonjusticiable and must be dismissed. These arguments, though expressed in the relevant language of each individual justiciability doctrine, are all centered on a single fundamental point—the judiciary should not be involved in refereeing a dispute that is solely between the legislative and executive branches. The briefs and judicial opinions explicitly identify a coherent category of cases—interbranch cases. But these cases are treated haphazardly as a matter of doctrine. Within …

Race Conscious Affirmative Action By Tax Exempt 501(C)(3) Institutions After Students For Fair Admissions V. Harvard And Unc, David A. Brennen

Law Faculty Scholarly Articles

In 1983, several years after its 1954 decision in Brown v. Board of Education, the United States Supreme Court decided a case that significantly impacted tax-exempt § 501(c)(3) charitable schools that consider race in making admissions decisions. In Bob Jones University v. United States, the Court held that a private school that discriminates against African Americans in admissions is not entitled to § 501(c)(3) tax-exempt status. The Court based its decision on the public policy doctrine, an off-shoot of the well established illegality doctrine. Pursuant to the public policy doctrine, the Court upheld the IRS’s decision to deny …

Opioid Lawsuits: Is There Any End In Sight?, Richard C. Ausness

Law Faculty Scholarly Articles

Numerous lawsuits have been filed since 2014 against opioid manufacturers, distributors and retail pharmacies by state and local governments and other plaintiffs. Unfortunately, although some settlements with some defendants have been negotiated, a comprehensive “global” resolution of the opioid controversy remains elusive. This article traces the history of opioid litigation and considers whether there is a better way to deal with such a massive problem.

Beneficiaries As Trustees: Here's The State Of Things, Richard C. Ausness

Law Faculty Scholarly Articles

It is not unusual for settlors to appoint beneficiaries as trustees. However, there are serious risks associated with this practice. This Article will examine some of these risks and suggest ways to reduce them. Part II describes why settlors appoint beneficiaries as trustees. Part III identifies some of the cases that have arisen where other trust beneficiaries have charged trustee beneficiaries with breach of fiduciary duties such as the duty of loyalty, impartiality, and prudence, as well as the duty to inform and report. Part IV explores a number of cases which have involved common trust arrangements such as revocable …

Low-Head Dams (Aka Drowning Machines) Are Deadly: An Analysis Of Liability For Landowners And States, And Recommendations For Legislation And Warning Signs, Forrest R. Hansen, Rollin H. Hotchkiss

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Making Sense Of “Commence” In The Clean Water Act’S Diligent Prosecution Bar, Isa Harrison

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

50 Shades Of Green: How Inconsistencies In State Regulatory Regimes Threaten To Doom The Legal Cannabis Market In The United States, Shawn Harkins

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

A New Rule: Why Broad Jurisdiction Under § 404 Of The Clean Water Act Will Protect Wetlands, Gracie Sandlin

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Delta-Late: How The Contentious And Hazy Legal Status Of Delta-8 Thc Reveals Kentucky’S Need For Federal Regulatory Guidance, Georgiana Ledford

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Let Kids Be Kids: Why The Fair Labor Standards Act Of 1938 Desperately Needs A Revision, Cori Agnoni

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Horsing Around With Protecting The Horse Industry: Should California Adopt An Equine Activity Liability Act?, Kara Legg

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Companies Over Countries: A More Pointed Approach To International Climate Treaties, Alex G. Woodward

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Artificial Intelligence And The Practice Of Law Part 1: Lawyers Must Be Professional And Responsible Supervisors Of Ai, Michael D. Murray

Law Faculty Popular Media

No abstract provided.