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The Role Of Blue Sky Laws After Nsmia And The Jobs Act, Rutheford B. Campbell Jr. Dec 2016

The Role Of Blue Sky Laws After Nsmia And The Jobs Act, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

State securities laws—in particular, state laws requiring that securities offered by issuers be registered with the states—have been an impediment to the efficient movement of capital to its highest and best use. The pernicious effects of these laws—generally referred to as “blue sky laws”—have been felt most acutely by small businesses, a vital component of our national economy.

It has been difficult to remedy this problem. States and state regulators have been tenacious in protecting their registration authority from federal preemption. The Securities and Exchange Commission, on the other hand, has been reluctant to advocate for ...


Machiavellian Intellectual Property, Brian L. Frye Oct 2016

Machiavellian Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories ...


Aesthetic Nondiscrimination & Fair Use, Brian L. Frye Oct 2016

Aesthetic Nondiscrimination & Fair Use, Brian L. Frye

Law Faculty Scholarly Articles

While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use “transformativeness” inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works.

Courts should apply the aesthetic nondiscrimination principle to both copyright and fair ...


Art & The “Public Trust” In Municipal Bankruptcy, Brian L. Frye Oct 2016

Art & The “Public Trust” In Municipal Bankruptcy, Brian L. Frye

Law Faculty Scholarly Articles

In 2013, the City of Detroit filed the largest municipal bankruptcy action in United States history, affecting about $20 billion in municipal debt. Unusually, Detroit owned its municipal art museum, the Detroit Institute of Arts (“DIA”) and all of the works of art in the DIA collection, which were potentially worth billions of dollars. Detroit’s creditors wanted Detroit to sell the DIA art in order to satisfy its debts. Key to the confirmation of Detroit’s plan of adjustment was the DIA settlement, under which Detroit agreed to sell the DIA art to the DIA corporation in exchange for ...


Non-Charitable Purpose Trusts: Past, Present, And Future, Richard C. Ausness Oct 2016

Non-Charitable Purpose Trusts: Past, Present, And Future, Richard C. Ausness

Law Faculty Scholarly Articles

This Article focuses on non-charitable purpose trusts and how they enable estate planners to better carry out their clients’ objectives. Specifically, it explores the history of non-charitable purpose trusts and summarizes the differences between private trusts, charitable trusts, and non-charitable purpose trusts. This Article also examines the treatment of non-charitable purpose trusts in England and the United States prior to the promulgation of the Restatement of Trusts in 1935. This Article surveys the recent adoption of non-charitable purpose trust provisions in the Uniform Trust Code and various Restatements and gives advice on drafting the trust instruments. Lastly, this Article concludes ...


Closing The Retirement Savings Gap: Are State Automatic Enrollment Iras The Answer?, Kathryn L. Moore Oct 2016

Closing The Retirement Savings Gap: Are State Automatic Enrollment Iras The Answer?, Kathryn L. Moore

Law Faculty Scholarly Articles

Drawing on insights from behavioral law and economics, automatic enrollment IRAs are intended to address the nation’s retirement savings gap by taking advantage of workers’ inertia. Although automatic enrollment IRAs were initially intended to apply at the federal level, they have gained little traction at the federal level, and states have begun to step into the breach. Between September 2012 and June 2016, five states enacted state automatic enrollment IRA programs.

Studies have uniformly shown that workers are more likely to participate in an automatic enrollment 401(k) plan than in a traditional opt-in 401(k) plan. Proponents of ...


Rubbing The Rabbit's Foot: Gallows Superstitions And Public Healthcare In England During The Eighteenth And Nineteenth Centuries, Roberta M. Harding Jul 2016

Rubbing The Rabbit's Foot: Gallows Superstitions And Public Healthcare In England During The Eighteenth And Nineteenth Centuries, Roberta M. Harding

Law Faculty Scholarly Articles

Superstitions possess an ancient pedigree. With the passage of time thematic superstitions developed; for example, some solely addressed the public’s health care needs. In fact, as far back as the fifth century many English subjects believed magical spells and jewels had curative properties. Law was another context that generated a body of superstitions. Capital punishment was one area that generated many superstitions. In fact, so many that a specific category was established: gallows superstitions. With hanging as the primary method of execution in England for centuries, this group of superstitions became a relatively large one. By merging the health ...


A Riff On Billy The Kid, Richard H. Underwood Apr 2016

A Riff On Billy The Kid, Richard H. Underwood

Law Faculty Scholarly Articles

In this essay the author discusses Billy Joel’s recording of Billy the Kid and that song's history.


Keeping Up With New Legal Titles, Tina M. Brooks Apr 2016

Keeping Up With New Legal Titles, Tina M. Brooks

Law Faculty Scholarly Articles

In this book review, Tina M. Brooks discusses Voters' Verdicts: Citizens, Campaigns, and Institutions in State Supreme Court Elections by Chris W. Bonneau and Damon M. Cann.


Against Data Exceptionalism, Andrew Keane Woods Apr 2016

Against Data Exceptionalism, Andrew Keane Woods

Law Faculty Scholarly Articles

One of the great regulatory challenges of the Internet era—indeed, one of today's most pressing privacy questions—is how to define the limits of government access to personal data stored in the cloud. This is particularly true today because the cloud has gone global, raising a number of questions about the proper reach of one state's authority over cloud-based data. The prevailing response to these questions by scholars, practitioners, and major Internet companies like Google and Facebook has been to argue that data is different. Data is “unterritorial,” they argue, and therefore incompatible with existing territorial notions ...


Scenes From The Copyright Office, Brian L. Frye Apr 2016

Scenes From The Copyright Office, Brian L. Frye

Law Faculty Scholarly Articles

This essay uses a series of vignettes drawn from Billy Joel’s career to describe his encounters with copyright law. It begins by examining the ownership of the copyright in Joel’s songs. It continues by considering the authorship of Joel’s songs, and it concludes by evaluating certain infringement actions filed against Joel. This Essay observes that Joel’s encounters with copyright law were confusing and frustrating, but also quite typical. The banality of his experiences captures the uncertainty and incoherence of copyright doctrine.


Planned Parenthood: Adult Adoption And The Right Of Adoptees To Inherit, Richard C. Ausness Jan 2016

Planned Parenthood: Adult Adoption And The Right Of Adoptees To Inherit, Richard C. Ausness

Law Faculty Scholarly Articles

This Article is concerned with the effect of adult adoptions on the inheritance rights (in the broad sense of that term) of adult adoptees. The Article contends many adult adoption statutes assume the existence of a parent-child relationship in which the adopter is the “parent” and the adoptee is a “child” even though this is not true of all adult adoption cases. In addition, legislatures and courts frequently fail to differentiate between “quasi-familial” adoptions and “strategic” adoptions, particularly where inheritance rights are concerned.


Instrumental And Transformative Medical Technology, Nicole Huberfeld Jan 2016

Instrumental And Transformative Medical Technology, Nicole Huberfeld

Law Faculty Scholarly Articles

This Article considers how medical technologies impact universality in health care. The universality principle, as embodied in the Patient Protection and Affordable Care Act (ACA), eliminated widespread discriminatory practices and provided financial assistance to those otherwise unable to become insured—a democratizing federal act that was intended to stabilize health care policy nationwide. This Article posits that medical technology, as with all of medicine, can be universalizing or exclusionary and that this status roughly correlates to its being “instrumental technology” or “transformative technology.” Instrumental technology acts as a tool of medicine and often serves an existing aspect of health care ...


Half-Baked: The Demand By For-Profit Business For Religious Exemptions From Selling To Same-Sex Couples, James Donovan Jan 2016

Half-Baked: The Demand By For-Profit Business For Religious Exemptions From Selling To Same-Sex Couples, James Donovan

Law Faculty Scholarly Articles

Should bakers be required to make cakes for same-sex weddings? With the announcement of a constitutional right to same-sex marriage in Obergefell, one of the next confrontations in the struggle for expanded equality will involve the demand for religious exemptions from nondiscrimination laws in the public marketplace. The present discussion unravels the eclectic arguments that are repeatedly offered in support of such an exemption. The initial feint invokes a fundamental right to exclude, which fails for two reasons. First, the right to exclude is a fundamentally racist rule devised to prevent African-Americans from participating in free society. Rather than attempt ...


Keeping Up With New Legal Titles, Beau Steenken Jan 2016

Keeping Up With New Legal Titles, Beau Steenken

Law Faculty Scholarly Articles

In this book review, Beau Steenken discusses Legal Research Methods by Michael D. Murray & Christy H. DeSanctis.


State Judges And The Right To Vote, Joshua A. Douglas Jan 2016

State Judges And The Right To Vote, Joshua A. Douglas

Law Faculty Scholarly Articles

State courts are paramount in defining the constitutional right to vote. This primacy of state courts exists in part because the right to vote is a state-based right protected under state constitutions. In addition, election administration is largely state-driven, with states regulating most of the rules for casting and counting ballots. State law thus guarantees—and state courts interpret—the voting rights that we cherish so much as a society. State courts that issue rulings broadly defining the constitutional right to vote best protect the most fundamental right in our democracy; state decisions that constrain voting to a narrower scope ...


Rlupia And The Limits Of Religious Institutionalism, Zachary A. Bray Jan 2016

Rlupia And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with ...


Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan Jan 2016

Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The one-hundredth anniversary of the estate tax provides an ideal moment to reflect on the role of wealth transfer taxation in the larger scheme of the U.S. tax system. Wealth and income inequality are at historically high levels, and the responses to these issues are often reduced to a simplistic political dichotomy of “right” versus “left.” The multitude of views of the American people cannot be reduced to such simple generalities without losing important nuances. This Article identifies three general categories of political philosophical viewpoints that are commonly endorsed by both politicians and everyday Americans, and then examines the ...


Copyright In Pantomime, Brian L. Frye Jan 2016

Copyright In Pantomime, Brian L. Frye

Law Faculty Scholarly Articles

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to '“pantomimes” was forgotten. This Article argues that ...


The Sec's Regulation A+: Small Business Goes Under The Bus Again, Rutheford B. Campbell Jr. Jan 2016

The Sec's Regulation A+: Small Business Goes Under The Bus Again, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Title IV of the JOBS Act, which is entitled "Small Company Capital Formation," requires the Securities and Exchange Commission to adopt new rules regarding offerings under Regulation A. The Commission has now adopted its final regulations implementing Title IV and providing a new regulatory regime for exempt offerings under Section 3(b) of the Securities Act of 1933. The new regime is generally referred to as Regulation A+.

Unfortunately, history and empirical data regarding the use of Regulation A and Regulation D strongly suggest that the final Regulation A+ rules are unlikely to provide any material relief for small businesses ...


A Closer Look At The Iras In State Automatic Enrollment Ira Programs, Kathryn L. Moore Jan 2016

A Closer Look At The Iras In State Automatic Enrollment Ira Programs, Kathryn L. Moore

Law Faculty Scholarly Articles

The United States faces a serious retirement savings funding gap. In an effort to fill that gap, a number of states and municipalities have begun to consider, and in some instances adopt, automatic enrollment IRA programs. Indeed, between September 2012 and June 2016, five states enacted state automatic enrollment IRA programs.

This Article takes a closer look at the IRAs in these state programs. It begins by providing an overview of the state laws creating automatic enrollment IRA programs. It then discusses the requirements that the state programs must satisfy in order to qualify as IRAs for purposes of the ...


The Future Of The Cadillac Tax, Kathryn L. Moore Jan 2016

The Future Of The Cadillac Tax, Kathryn L. Moore

Law Faculty Scholarly Articles

The Affordable Care Act includes a 40 percent excise tax on high-cost employer-sponsored health care coverage. Often referred to as the “Cadillac tax,” this excise tax is one of the most controversial elements of the Affordable Care Act.

Currently scheduled to go into effect in 2020, the Cadillac tax poses serious challenges and uncertainty for employers. On the one hand, recent estimates suggest that the Cadillac tax may hit as many as 20 percent of employers with health care plans in 2020. On the other hand, there is a serious question as to whether the tax will be repealed before ...


A “Checklist Manifesto” For Election Day: How To Prevent Mistakes At The Polls, Joshua A. Douglas Jan 2016

A “Checklist Manifesto” For Election Day: How To Prevent Mistakes At The Polls, Joshua A. Douglas

Law Faculty Scholarly Articles

Mistakes happen—especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested ...


In Defense Of Lowering The Voting Age, Joshua A. Douglas Jan 2016

In Defense Of Lowering The Voting Age, Joshua A. Douglas

Law Faculty Scholarly Articles

This Essay outlines the various policy arguments in favor of lowering the voting age to sixteen. Part I presents a very brief history of the voting age in U.S. elections. It notes that setting the voting age at eighteen is, in many ways, a historical accident, so lowering the voting age for local elections does not cut against historical norms. Part II explains that there are no constitutional barriers to local jurisdictions lowering the voting age for their own elections. Part III highlights the benefits to democracy and representation that lowering the voting age will engender. Turning eighteen represents ...


A Pivotal Moment For Election Law, Joshua A. Douglas Jan 2016

A Pivotal Moment For Election Law, Joshua A. Douglas

Law Faculty Scholarly Articles

In this brief Foreword to the Kentucky Law Journal Symposium Issue, I chronicle the importance of Justice Scalia's death to election law jurisprudence and highlight the articles in this Issue that will shape the debate in the coming years. Part I looks at how a replacement for Justice Scalia could change, solidify, or extend various aspects of election law doctrine. Part II then summarizes the seven articles in this Symposium Issue, explaining how fresh eyes on the Court could potentially give these proposals a boost. This is a pivotal moment for election law. The Kentucky Law Journal articles in ...


Notes From The Underground (Sometimes Aboveground, Too), Richard H. Underwood Jan 2016

Notes From The Underground (Sometimes Aboveground, Too), Richard H. Underwood

Law Faculty Scholarly Articles

When I was invited by Savannah Law Review to be a panelist at The Walking Dead Colloquium at Savannah Law School, I thought . . . that’s no crazier than the Bob Dylan and the Law Symposium. I was compelled to accept.


Another Look At Skelly Oil And Franchise Tax Board, Paul E. Salamanca Jan 2016

Another Look At Skelly Oil And Franchise Tax Board, Paul E. Salamanca

Law Faculty Scholarly Articles

In recent years, members of the Supreme Court of the United States have twice cited Skelly Oil Co. v. Phillips Petroleum Co. for the proposition that the federal Declaratory Judgment Act, which Congress enacted in 1934, is “procedural only” and does not enlarge the scope of federal jurisdiction. By this, they probably mean that Skelly allows no case into federal court in the presence of the act that could not find its way there in its absence. But whether this assertion is accurate today, or was accurate in 1950 when Justice Frankfurter wrote Skelly, is not entirely clear. Depending on ...


Visual Rhetoric: Topics Of Invention And Arrangement And Tropes Of Style, Michael D. Murray Jan 2016

Visual Rhetoric: Topics Of Invention And Arrangement And Tropes Of Style, Michael D. Murray

Law Faculty Scholarly Articles

This Article evaluates visual legal rhetoric in order to demonstrate the potential of visual-graphical devices and narrative elements for use in legal discourse. The subject of my demonstration of graphical rhetorical devices is the famous work of modern rhetoric, Reverend Dr. Martin Luther King, Jr.'s "Letter from Birmingham Jail." I will perform a rhetorical analysis of the verbal topics of invention and tropes of style in the text of the letter, and simultaneously demonstrate the use of images and visual elements in an "illustrated" form of the letter.

Part II of this Article provides an introduction and background information ...


Social Technology & The Origins Of Popular Philanthropy, Brian L. Frye Jan 2016

Social Technology & The Origins Of Popular Philanthropy, Brian L. Frye

Law Faculty Scholarly Articles

The prevailing theory of charity law holds that the charitable contribution deduction is justified because it solves market and government failures in charitable goods by compensating for free riding on charitable contributions. This Article argues that many market and government failures in charitable goods are actually caused by transaction costs, and that social technology can solve those market and government failures by reducing transaction costs. Specifically, it shows that in the early twentieth century, the social technology of charity chain letters solved market and government failures in charitable contributions and facilitated the emergence of popular philanthropy.


Health Care And The Myth Of Self-Reliance, Nicole Huberfeld, Jessica L. Roberts Jan 2016

Health Care And The Myth Of Self-Reliance, Nicole Huberfeld, Jessica L. Roberts

Law Faculty Scholarly Articles

King v. Burwell asked the Supreme Court to decide if, in providing assistance to purchase insurance “through an Exchange established by the State,” Congress meant to subsidize policies bought on the federally run exchange. With its ruling, the Court saved the Patient Protection and Affordable Care Act’s low-income subsidy. But King is only part of a longer, more complex story about health care access for the poor. In a move toward universal coverage, two pillars of the ACA facilitate health insurance coverage for low-income Americans, one private and one public: (1) the subsidy and (2) Medicaid expansion. Although both ...