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Are Cryptopunks Copyrightable?, Brian L. Frye Jan 2022

Are Cryptopunks Copyrightable?, Brian L. Frye

Law Faculty Scholarly Articles

Larva Labs’s CryptoPunks NFTs are iconic. Created in 2017, they were among the first NFTs on the Ethereum blockchain. Four years later, they are among the most valuable, selling for anywhere from $200,000 to millions of dollars.

The CryptoPunks collection consists of 10,000 NFTs, each of which is associated with a unique CryptoPunks image. Everyone knows who owns each CryptoPunks NFT. The Ethereum blockchain provides indelible proof. But people disagree about who owns - and who should own - the copyright in the CryptoPunks images. Most CryptoPunks NFT owners believe they should own the copyright in the image associated with …


Toxic Public Goods, Brian L. Frye Jan 2022

Toxic Public Goods, Brian L. Frye

Law Faculty Scholarly Articles

Everybody loves public goods. After all, they are a perpetual utility machine. Obviously, we want as many of them as possible. But what if the consumption of a public good actually decreases net social welfare? I refer to this kind of public good as a "toxic public good." In this essay, I discuss three kinds of potential toxic public goods: trolling, pornography, and ideology, and I reflect on how we might make the production of toxic public goods more efficient.


How To Sell Nfts Without Really Trying, Brian L. Frye Jan 2022

How To Sell Nfts Without Really Trying, Brian L. Frye

Law Faculty Scholarly Articles

Something is happening and we don’t know what it is. Suddenly last summer, the internet went nuts for “non-fungible tokens” or “NFTs.” In a matter of months, NFT sales swelled from a sleepy slough of the blockchain to a thundering cataract that shows no sign of slaking. Special NFTs sell for millions of dollars, and some are even securitized. It’s a big business that’s only getting bigger.

But no one seems to know why. Objectively, NFTs are useless, meaningless, and worthless. So why are people willing to pay millions of dollars for them, even begging for the opportunity? Maybe it …


After Copyright: Pwning Nfts In A Clout Economy, Brian L. Frye Jan 2022

After Copyright: Pwning Nfts In A Clout Economy, Brian L. Frye

Law Faculty Scholarly Articles

Copyright is a means to an end, not an end in itself. We created copyright because we wanted to encourage the creation and distribution of works of authorship, not because we wanted to enable copyright owners to control the use of the works they own. We stuck with copyright because it was the best tool we had, despite its flaws. Was copyright ever efficient? No. But marginal improvements matter.

Technology has changed the copyright calculus. Distribution of works of authorship gradually got cheaper and cheaper. And then the Internet made it free. But creation remained costly, even though technology helped …


Fair Housing And The Causation Standard After Comcast, Robert G. Schwemm Jan 2021

Fair Housing And The Causation Standard After Comcast, Robert G. Schwemm

Law Faculty Scholarly Articles

The Supreme Court last term held in the Comcast case that “but-for” causation must be shown by plaintiffs under the 1866 Civil Rights Act’s § 1981 and also announced that this standard is the default position presumed to govern all other federal civil rights statutes. This Article deals with how Comcast’s but-for presumption applies to fair housing cases.

The answer is complicated, because these cases are often brought under multiple laws. For example, a Black applicant who is rejected by an apartment complex ostensibly for having inadequate income, but who believes this decision was racially motivated because the complex …


Limits Of The Rule Of Law: Negotiating Afghan “Traditional” Law In The International Civil Trials In The Czech Republic, Tomas Ledvinka, James M. Donovan Jan 2021

Limits Of The Rule Of Law: Negotiating Afghan “Traditional” Law In The International Civil Trials In The Czech Republic, Tomas Ledvinka, James M. Donovan

Law Faculty Scholarly Articles

Drawing on ethnographic research of judicial cases in the Czech Republic which involve the law in migrants' countries of origin, this Article outlines how multiple strategies handle encounters with the legal-cultural differences of Afghanistan in order to neutralize what may be called the “alterity” of law. The Article suggests that far from being analytical tools, concepts such as “context,” “culture,” and “customary” are strategically used by courts to neutralize unsettling aspects of foreign Afghan legalities. Further, it applies Leopold Pospíšil´s ethnological concept of legal authority as a vehicle for reinterpreting the contextual differentiation of Afghan “traditional” law as an alternative …


Corporate Misconduct In The Pharmaceutical Industry, Richard C. Ausness Jan 2021

Corporate Misconduct In The Pharmaceutical Industry, Richard C. Ausness

Law Faculty Scholarly Articles

Sadly, many pharmaceutical companies have engaged in unethical or illegal behavior. The current opioid crisis is the most recent example of misconduct by pharmaceutical companies. Moreover, this pattern of conduct is neither rare, nor recent. Instead, it is long-standing and pervasive in nature. Furthermore, unlike wrongdoing by other businesses that cause primarily economic or environmental harm, wrongdoing by pharmaceutical companies, like that of asbestos or tobacco companies, may cause personal injuries and death on a large scale.


Keeping It In The Family: The Pitfalls Of Naming A Family Member As A Trustee, Richard C. Ausness Jan 2021

Keeping It In The Family: The Pitfalls Of Naming A Family Member As A Trustee, Richard C. Ausness

Law Faculty Scholarly Articles

This article is concerned with trusts in which either the settlor, trustee, or beneficiaries are members of the same family. For example, the settlors may be the parents, grandparents, or other relatives of the trust beneficiaries. Trustees may be settlors, parents of the beneficiaries, children of the settlor, and other family members, while beneficiaries may include either the settlor, the settlor's spouse, children, grandchildren, or other relatives of the settlor. These persons will be referred to as "family members."

Virtually all family members have disagreements with other family members and sometimes these disagreements can destroy relationships and even lead to …


Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas Jan 2021

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

Law Faculty Scholarly Articles

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.


"How The Sausage Gets Made": Voter Id And Deliberative Democracy, Joshua A. Douglas Jan 2021

"How The Sausage Gets Made": Voter Id And Deliberative Democracy, Joshua A. Douglas

Law Faculty Scholarly Articles

In 2020, Kentucky became the twentieth state to enact a law that requires voters to show a photo ID at the polls to vote. Yet the law is one of the most mild and reasonable photo ID laws to pass in recent memory. This article tells the inside story of how that law came to be. And it presents the broader story of how the process of crafting legislation, when employing a theory of deliberative democracy, can increase legitimacy and produce better results for the functioning of our elections. The Kentucky story therefore offers important lessons for election law policy …


Literary Landlords In Plaguetime, Brian L. Frye Jan 2021

Literary Landlords In Plaguetime, Brian L. Frye

Law Faculty Scholarly Articles

The coronavirus pandemic has affected our lives in countless ways. One of its unfortunate effects was the unavoidable closure of public libraries. Many people rely on public libraries for many different things, including free access to books. When public libraries closed, many people lost access to books, especially new books.

In response, the Internet Archive created the National Emergency Library to make digital copies of books more accessible. The Internet Archive's Open Library is a free digital lending library founded in 2006 that provides digital access to the books in its collection. Currently, the Open Library holds about 4 million …


A License To Plagiarize, Brian L. Frye Jan 2021

A License To Plagiarize, Brian L. Frye

Law Faculty Scholarly Articles

Since time immemorial, authors have wanted to own various kinds of

exclusive rights in the works they create. Curiously, the rights authors want

to own at any particular point in time tend to reflect the nature of the market

for the works they create. The first exclusive right authors wanted was attribution.

In classical Greece, philosophers accused each other of copying

ideas without attribution. The Roman poet Martial coined the term plagiarius

to criticize other poets for passing off his poems as their own. Even

medieval Irish poets observed plagiarism norms that prohibited copying

without attribution. In all of these …


Grounding Suicide Terrorism In Death Anxiety And Consumer Capitalism, James M. Donovan Jan 2021

Grounding Suicide Terrorism In Death Anxiety And Consumer Capitalism, James M. Donovan

Law Faculty Scholarly Articles

This article examines an influential theory on suicide attacker motivations, the Significance Quest Theory, and suggests that this death anxiety approach can be improved by shifting its focus toward the related, but more comprehensive, Terror Management Theory. The theoretical productivity of this realignment is tested by examining the relationship between suicide attacks and one of the variables thought to trigger the underlying anxieties: the local pressures from global consumer capitalism. After describing the relationship between death anxiety and suicide terrorism generally, this article concludes by applying these insights to the ethnographic context of Egypt.


Causation And Apportionment Issues In Opioid Litigation, Richard C. Ausness Jan 2021

Causation And Apportionment Issues In Opioid Litigation, Richard C. Ausness

Law Faculty Scholarly Articles

In November 2019, an Oklahoma trial court judge, sitting without a jury, ruled that Johnson & Johnson and its subsidiary Janssen Pharmaceuticals were guilty of creating a public nuisance because their production and marketing of prescription opioid painkillers significantly contributed to the current opioid epidemic in the State of Oklahoma. The judge also held that Johnson & Johnson must contribute $65 million to pay for the State's program to abate this nuisance. Although the case has been appealed, it is significant because it was the first government sponsored opioid case to actually go to trial. Although there are many issues …


Sec No-Action Letter Request, Brian L. Frye Jan 2021

Sec No-Action Letter Request, Brian L. Frye

Law Faculty Scholarly Articles

No abstract provided.


Question #1: Is There A Gender Gap In Performance On Multiple Choice Exams? A. Always B. Never C. Most Of The Time, Jane Bloom Grisé Jan 2021

Question #1: Is There A Gender Gap In Performance On Multiple Choice Exams? A. Always B. Never C. Most Of The Time, Jane Bloom Grisé

Law Faculty Scholarly Articles

The correct answer to Question #1 is C. Most of the time, women score lower than men on multiple-choice exams. Question #2: How did you become interested in this topic?

A. The author likes to create multiple-choice tests.

B. The author does well on multiple-choice tests.

C. The author unexpectedly discovered this disparity.

The correct answer is C. I discovered this disparity unexpectedly and was surprised to find that women scored lower than men on multiple-choice exams and that multiple-choice exams underpredicted women's academic performance.

While educators might assume that different types of assessments such as multiple-choice and essays are …


Court Packing Is A Chimera, Brian L. Frye Jan 2021

Court Packing Is A Chimera, Brian L. Frye

Law Faculty Scholarly Articles

The dream of the 1930s is alive in Washington. Democrats see

Republicans hemorrhaging voters as Trump struggles with the

economy and the pandemic and are salivating at the prospect of

retaking not only the White House, but also the Senate. Of course, you

should never sell a bearskin until you've caught the bear. But even a

blowout victory can't get Democrats the prize they really want, a

Supreme Court majority. So, in back-to-the-future fashion, many

progressives are pushing the idea of court packing. After all, in politics,

rules are made to be broken.


Conceptual Copyright, Brian L. Frye Jan 2021

Conceptual Copyright, Brian L. Frye

Law Faculty Scholarly Articles

Conceptual art is art that consists of ideas, not their realization. It tests the

boundaries of art, by eliminating the art object entirely. Legal scholars should be

interested in conceptual art because it can help them test the boundaries of legal

doctrines and their justifications. I created a work of conceptual art that reflects

on both the securities laws and copyright doctrine. Among other things, I asked

the SEC and the Copyright Office to opine on that work, with limited success. I

use my experience to reflect on how conceptual art can illuminate our

understanding of the law.


Invoking Criminal Equity's Roots, Cortney Lollar Jan 2021

Invoking Criminal Equity's Roots, Cortney Lollar

Law Faculty Scholarly Articles

Equitable remedies have begun to play a critical role in addressing

some of the systemic issues in criminal cases. Invoked when other

solutions are inadequate to the fair and just resolution of the case,

equitable remedies, such as injunctions and specific performance,

operate as an unappreciated and underutilized safety valve that

protects against the procedural strictures and dehumanization that are

hallmarks of our criminal legal system. Less familiar equitable-like

legal remedies, such as writs of mandamus, writs of coram nobis, and

writs of audita querela, likewise serve to alleviate fundamental errors

in the criminal process. Several barriers contribute to the …


A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye Jan 2021

A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye

Law Faculty Scholarly Articles

For numberless generations, jurisprudes waged total war in the

conflict among textualism, intentionalism, and purposivism.

Textualists insisted that courts must interpret statutes based on the

meaning of their text, intentionalists insisted on the intention of the

legislature, and purposivists insisted on the purpose of the statute.

Eventually, textualism prevailed. Courts universally recognize

that they are obligated to interpret statutes in light of their text, or

at least pretend that the text of the statute determined their

interpretation. And the few remaining heretics are swiftly identified

and corrected by their superiors. As Justice Kagan famously

observed, “We’re all textualists now.” Whether …


Hidden Rules Of A Modest Antitrust, Ramsi Woodcock Jan 2021

Hidden Rules Of A Modest Antitrust, Ramsi Woodcock

Law Faculty Scholarly Articles

Reforming antitust’s rule of reason by shifting burdens of proof to defendants will not solve antitrust’s enforcement drought. For the drought is due in part to the cost to enforcers of identifying rule of reason cases to bring and not just to the cost of winning the cases that enforcers do bring. Enforcement costs matter because enforcers’ budgets are limited—they have failed for a long time to keep up with GDP—and the rule of reason’s emphasis on case-specific effects makes it costly for enforcers to identify good cases to bring. The Supreme Court’s adoption of the rule of reason approach …


These Are A Few Of My Least Favorite Things, Richard C. Ausness Jan 2021

These Are A Few Of My Least Favorite Things, Richard C. Ausness

Law Faculty Scholarly Articles

The Uniform Probate Code ("UPC") can trace its origins back to a Model Probate Code promulgated by the American Bar Association ("ABA")'s section on Real Property, Probate, and Trust Law in 1946. In 1962, the Section on Real Property, Probate, and Trust Law, along with National Conference of Commissioners on Uniform State Laws began work on what was to become the original UPC. The National Conferences and the ABA's House of Delegates approved the UPC in 1969.

The 1969 UPC was an attempt to modernize some of the traditional rules and provide a degree of uniformity for the American law …


Taxing The Ivory Tower: Evaluating The Excise Tax On University Endowments, Jennifer Bird-Pollan Jan 2021

Taxing The Ivory Tower: Evaluating The Excise Tax On University Endowments, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The Tax Cuts and Jobs Act of 2017 introduced the first-ever excise tax imposed on the investment income of university endowments. While it is a relatively small tax, this new law is a first step towards the exploration of taxing non-profit entities on the vast sums of wealth they hold in their endowments. In this essay I take the new tax as a starting place for investigating the justification for tax exemption for universities and thinking through the consequences of changing our approach, both in the form of the new excise tax and possible alternatives. There remain reasons to be …


Bring The Masks And Sanitizer: The Surprising Bipartisan Consensus About Safety Measures For In-Person Voting During The Coronavirus Pandemic, Joshua A. Douglas, Michael A. Zilis Jan 2021

Bring The Masks And Sanitizer: The Surprising Bipartisan Consensus About Safety Measures For In-Person Voting During The Coronavirus Pandemic, Joshua A. Douglas, Michael A. Zilis

Law Faculty Scholarly Articles

Requiring masks at the polls might implicate a clash between two vital rights: the constitutional right to vote and the right to protect one’s health. Yet the debate during the 2020 election over requirements to wear a mask at the polls obscured one key fact: a majority of Americans supported a mask mandate for voting. That is the new insight we provide in this Essay: when surveyed, Americans strongly supported safety measures for in-person voting, and that support was high regardless of partisanship. One implication of our results is that by making some widely supported safety modifications, state election officials …


Diagrammatics And The Proactive Visualization Of Legal Information, Michael D. Murray Jan 2021

Diagrammatics And The Proactive Visualization Of Legal Information, Michael D. Murray

Law Faculty Scholarly Articles

This article performs an analysis of one mode of visual legal communication:

diagrammatics and the visualization of legal data and other information

in legal instruments and communications.

The Proactive Law movement and the Legal Design movement each

seek to transform legal instruments and documents to improve access to and

comprehension of the communication of law to all persons. “All persons”

includes both law-trained and non-law-trained persons and extends from the

literate and educated all the way to disadvantaged, illiterate, and less-thanfully

literate persons. The overall goal of the Proactive Law movement and a

primary goal of Legal Design is to …


Plagiarism Pedagogy: Why Teaching Plagiarism Should Be A Fundamental Part Of Legal Education, Brian L. Frye, Megan E. Boyd Jan 2021

Plagiarism Pedagogy: Why Teaching Plagiarism Should Be A Fundamental Part Of Legal Education, Brian L. Frye, Megan E. Boyd

Law Faculty Scholarly Articles

As a practicing lawyer, if you aren’t plagiarizing, you’re committing malpractice. Litigators copy forms and arguments from winning briefs rather than bill their clients for reinventing the wheel. Transactional lawyers copy enforceable agreements to ensure their agreements are enforceable too. Partners routinely present documents prepared by associates (and sometimes even paralegals) as their own work. And judges are the most prolific plagiarists of all, copying briefs, opinions, treatises, and legal and nonlegal scholarship, adopting arguments from lawyers and holdings from other judges as their own and claiming authorship of opinions written primarily by their clerks or the parties to the …


Everything You Always Wanted To Know About Gouging (But Were Afraid To Ask): A Response To Ramsi Woodcock, Brian L. Frye Jan 2021

Everything You Always Wanted To Know About Gouging (But Were Afraid To Ask): A Response To Ramsi Woodcock, Brian L. Frye

Law Faculty Scholarly Articles

Good scholarship makes you change your mind, but great scholarship

makes you think differently. As usual, Ramsi Woodcock's article "The Efficient

Queue and the Case Against Dynamic Pricing", is great, because it made me

think differently about price regulation. Woodcock observes that prices not

only communicate information, but also redistribute resources. Sometimes,

producers change prices in response to competition or changes in the cost of

production. But other times, they change prices just because they can.

When prices reflect the marginal cost of production, consumers benefit

from market efficiencies. But when prices reflect a surge in demand, they

simply transfer …


Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray Jan 2021

Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray

Law Faculty Scholarly Articles

Contracts have always relied on text first, foremost, and usually exclusively. Yet, this approach leaves many users of contracts in the dark as to the actual meaning of the transactional documents and instruments they enter into. The average contract routinely uses language that only lawyers, law-trained readers, and highly literate persons can truly understand.

There is a movement in the law in the United States and many other nations called the visualization of law movement that attempts to bridge these gaps in contractual communication by using highly visual instruments. In appropriate circumstances, even cartoons and comic book forms of sequential …


Deodand, Brian L. Frye Jan 2021

Deodand, Brian L. Frye

Law Faculty Scholarly Articles

Law is a funny thing. Nobody really knows what it is. And there’s so much of it! If you started reading the United States Code out loud today, you’d be hoarse before you got to Title 17. Even still, you’d barely be getting started. The Library of Babel has nothing on the mountain of laws we’ve already got or the avalanche we keep creating. No one could possibly read them all, let alone remember what they say. What a conundrum!

And yet, as a practical matter, we still seem to have a pretty good idea of what the law expects …


Toward A Per Se Rule Against Price Gouging, Ramsi Woodcock Sep 2020

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 …