Volume 112

The Shaping of Information Flow in Law and Life

Introduction

Fred Schauer showed how the law takes a messy, probabilistic world and uses rules to draw bright lines through it: liable or not, knowing or ignorant, guilty or innocent.1 1.Of course, the law sometimes uses standards or probabilistic thresholds (reasonableness tests, burdens of proof), but the ultimate result is a categorical determination.Show More Such neat categorical boxes are a feature, not a bug, for the law. They serve two critical purposes: (1) they determine an outcome, and (2) they fulfill the law’s need for predictability and administrability.2 2.See Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 95, 137 (1991); Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 35–37 (2009); Frederick Schauer, Formalism, 97 Yale L.J. 509, 539 (1988); see also Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557, 611 (1992) (underscoring the need for legal predictability).Show More

From an economic perspective, though, information comes in shades of gray, not black and white. Indeed, sometimes those grays include dots and waves and not merely tones, such as when potential states of the world are poorly defined. Beliefs update by degree, and uncertainties in the law are rarely resolved to one or zero before a decision must be made. Finally, information may be written in invisible ink, as when ignorance hits and individuals do not even recognize the existence of some states of the world.

When law imposes categorical boundaries on this amorphous, ill-defined reality, it does more than merely regulate information asymmetries. It creates new strategic landscapes, where the boundaries themselves create games among strategic players. Hold people liable for what they know, and they might choose not to learn. Punish lies but not misleading truths, and quasi-truths will flourish. When some reputations get protected but others sullied, collective identities become both a valuable resource and a significant vulnerability.

This Essay explores three conceptual domains, which lie well outside of traditional legal scholarship. Nonetheless, each of the three has strong implications for the law. Those domains are information asceticism, the strategic choice not to learn; paltering, misleading without lying; and reputational externalities, spillovers—positive or negative—from associations. In each case, we show how and where the law draws lines. We then use simple economic models to illustrate the incentives that follow. Schauer’s insights about legal categorization embrace the economic logic of uncertainty, generating predictable strategic responses that often reshape but rarely eliminate the asymmetries that underlie them.

  1.  Of course, the law sometimes uses standards or probabilistic thresholds (reasonableness tests, burdens of proof), but the ultimate result is a categorical determination. ↑

  2.  See Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 95, 137 (1991); Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 35–37 (2009); Frederick Schauer, Formalism, 97 Yale L.J. 509, 539 (1988); see also Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557, 611 (1992) (underscoring the need for legal predictability). ↑

Foreword to In Tribute: Professor Frederick Schauer

I am delighted to introduce this special issue of the Virginia Law Review Online, which celebrates the life and work of my friend, mentor, and colleague, the late Fred Schauer. The essays that follow were written for a symposium entitled “Rules and Reasons: A Conference for Fred Schauer,” held here at the University of Virginia in September 2025 to honor Fred and mark the one-year anniversary of his passing, on September 1, 2024.

As a result, this collection is something beyond a regular law review issue, or even a regular festschrift. It is a memorial, a tribute, and the product of a gathering of a worldwide community. The scholars who assembled in September 2025 were a very distinguished group, as you will see as you read some of their work. Nevertheless, the most important distinction they all shared was that Fred mattered to them, and they mattered to Fred. The conference, and these essays, were created in Fred’s memory, but they also attest to his enormous impact and his enduring legacy across multiple areas of the law.

To give a small sense of that legacy, let me describe Fred by the numbers. Fred wrote more than 300 works, including 14 books, which he authored, edited, or co-edited. (And here, I must digress for a moment. When preparing the program for the conference, the Law School communications director wanted to include a full chronological list of Fred’s works. When she asked ChatGPT to produce such a list, it kept returning answers such as, “This is going to be a really long list. Are you sure you want such a long list?” and “Here are Fred Schauer’s top titles instead.” As she told me, Fred wrote so much that he defeated ChatGPT.)

Fred’s work cut across many areas of law and many dimensions, from the most practical to the most theoretical. The essays that follow address a multitude of topics, any one of which would occupy most scholars for a lifetime. Fred turned his considerable talents to each of these fields over the course of his remarkable career and contributed significantly to each.

Fred is also one of the most-cited legal scholars ever: A 2021 study put him in the top 20 most-cited legal scholars of all time, with 11,222 citations in books and articles as of that time, ahead of the likes of Herbert Wechsler and Henry Hart.1 1.Fred R. Shapiro, The Most-Cited Legal Scholars Revisited, 88 U. Chi. L. Rev. 1595, 1602 (2021).Show More Even this astounding fact falls far short of capturing Fred’s legacy. In addition to that enormous impact on scholarship in English, Fred’s works have been translated into at least six other languages: Italian, Spanish, Portuguese, French, Chinese, and Turkish. Participants in our conference represented four countries, sixteen universities, and two courts of law—and are just a small sliver of the scholars and lawyers around the world who have been influenced by Fred and his work.

That is Fred by the numbers: he was a giant, by any measure.

But none of that captures Fred the person—Fred the teacher, mentor, and colleague. All of us who knew him have stories about how remarkable he was. Speaking for myself, I joined the Virginia Law School faculty the same year as Fred and his spouse Bobbie Spellman, in 2008. I was working on freedom of speech and was awestruck by Fred. The Law School provides new faculty members with a mentor, a senior scholar on the faculty who will read their work, give advice, and generally offer support. I asked if Fred could be my mentor because I thought that was the only chance I had of possibly getting this incredibly important person to read any of my work.

It did not take me long to realize how wrong I was. As incredibly accomplished as he was, Fred was equally unassuming, approachable, and—this is very important in a teacher and colleague—both honest and kind. In addition to being one of the most distinguished people in the legal academy, Fred was one of the most generous about reading others’ work, especially that of junior scholars. Fred not only read everything I ever sent him, but he did it in record time and always sent it back with a long email list of suggestions and comments, which ranged from the insightful to the devastating. He did the same for any scholar who asked him, junior or senior. He also took time to give junior scholars advice about new projects, potential future lines of inquiry, and that all-important but hard-to-articulate question of what kind of scholar one ought to be. He appreciated each of us for our individual talents and strengths and had a knack for engaging in those big career questions in a way that was at once knowing—about us, about the vagaries of legal academia—and supportive. (The last piece of advice Fred ever gave me was, “Don’t be a university president.”)

Fred was a first-generation law school graduate, a first-generation college graduate, and a first-generation high school graduate. Born in Newark, N.J., he attended Dartmouth College and then Harvard Law School. He started his teaching career at West Virginia University and worked at five very different institutions: WVU, the College of William & Mary, the University of Michigan, Harvard University, and finally the University of Virginia. He was a generous mentor and role model to first-generation students. Equally importantly, he was down to earth, and that is not just a nice thing to have in a colleague or teacher: for anyone who sometimes feels out of place in academia, it is vital. Where some distinguished scholars might insist upon their rank in ways quiet and loud, Fred was the opposite. He made everyone feel welcome. He felt no need to assert his status: he simply asserted his mind, which was assertion enough.

I could write as many words as Fred wrote across his lifetime and still not capture everything that was wonderful about him. I am grateful to the Virginia Law Review for publishing this collection of essays, and to all the authors who have contributed here. Many hands together paint a fuller picture of Fred Schauer the scholar, mentor, teacher, and friend.

  1.  Fred R. Shapiro, The Most-Cited Legal Scholars Revisited, 88 U. Chi. L. Rev. 1595, 1602 (2021). ↑

The OnlyFans Economy: Intellectual Property’s Pivot from Scarcity to Authenticity

Generative AI is destabilizing the foundational assumption of intellectual property law: that creation is difficult, is expensive, and requires legal inducement. When machines produce text, images, and code at near-zero marginal cost, the utilitarian justification for copyright and patent protection begins to collapse. This Essay argues that what emerges in its place is a regime organized not around the scarcity of creation, but around the scarcity of verification—a shift from an incentive paradigm to a source identification paradigm dominated by trademark, rights of publicity, and platform-controlled authentication infrastructure.

OnlyFans provides a revealing case study. Despite AI-generated pornography flooding the market, the platform paid over $5.8 billion to human creators in 2024. Consumers pay not for content, which AI can approximate, but for provenance—the verified knowledge that they are interacting with a specific, authenticated person. This Essay identifies a “triple-lock” structure underlying this economy: verified identity draws consumers in, proprietary infrastructure ensures that access requires staying inside the walled garden, and aggressive copyright enforcement destroys unauthorized copies that would otherwise undermine authenticity’s value.

Applying a Law and Political Economy lens, the Essay argues that this emerging regime systematically advantages those who already possess recognized brands, legal departments, and capital for proprietary infrastructure—while offering little to individual creators who lack pre-existing fame. It concludes by proposing that the Library of Congress serve as a public “digital notary,” preventing the infrastructure of authenticity from becoming a private toll road.

Introduction

AI-generated pornography is flooding the internet; The Economist reports that the market for synthetic adult content will reach $2.5 billion in 2025 and is projected to grow at twenty-seven percent annually.1 1.AI Is Upending the Porn Industry, The Economist, Nov. 29, 2025, at 55, 55.Show More And yet, OnlyFans, the online adult content platform designed around human content creators, generated $7.22 billion in revenue in 2024.2 2.Id. at 56; Todd Spangler, OnlyFans Gross Revenue Rises 9% to $7.2 Billion in 2024, Variety (Aug. 22, 2025, at 05:01 PT), https://variety.com/2025/digital/news/onlyfans-fiscal-‌2024-revenue-earnings-1236495750/.Show More The platform has paid over $25 billion to creators since 2016.3 3.Rose Henderson, OnlyFans Has Paid Creators $25 Billion Since 2016, CEO Says, Bloomberg (Oct. 21, 2025, at 11:06 ET), https://www.bloomberg.com/news/articles/2025-10‌-21/onlyfans-has-paid-creators-25-billion-since-2016-ceo-says.Show More

These facts sit uneasily together. If generative AI can produce unlimited synthetic explicit content on demand, customized to any specification, and cheaply available—why would anyone pay for content from a specific human being? The answer illuminates something important about the future of intellectual property. What consumers pay for on OnlyFans is not the content itself, which AI can now approximate with increasing fidelity. They pay for the provenance—the verified knowledge that they are interacting with a specific, authenticated person. The content is abundant; the source is scarce.

But provenance alone is not enough. OnlyFans does not merely verify identity; it protects that identity within a fortress of interlocking legal and technological defenses. Verified identity draws consumers in. Proprietary infrastructure—DRM encryption, anti-scraping measures, behavioral data collection—functions as enclosure. And aggressive copyright enforcement destroys unauthorized copies that would otherwise flood the market with “authentic” content. This triple-lock structure—identity as the hook, infrastructure as the lock, enforcement as border control—is the architecture of the post-incentive economy.

The intellectual property system has long operated on a different premise: that creation is difficult, expensive, and scarce, and therefore creators require the inducement of a temporary monopoly to produce. This utilitarian bargain underwrites the patent and copyright clause of the U.S. Constitution.4 4.U.S. Const. art. I, § 8, cl. 8.Show More Yet generative artificial intelligence has begun to unravel this foundational assumption. When the marginal cost of producing competent text, images, and code approaches zero, the economic logic of incentivizing creation collapses. Something must fill the void.

What emerges is a regime organized not around the scarcity of creation, but around the scarcity of verification. We are witnessing a transition from what might be called the incentive paradigm of intellectual property to a source identification paradigm dominated by trademark, rights of publicity, and platform-controlled verification infrastructure. In this new order, the legal system’s primary function shifts from encouraging the production of goods to certifying their origin.

This transformation is often presented as a neutral response to technological change.5 5.See, e.g., C2PA Founding Press Release, Coal. for Content Provenance & Authenticity (Feb. 22, 2021), https://c2pa.org/c2pa-founding-press-release/ [https://perma.cc/47CF-7‌5QN] (“With the collective expertise of this group, we will accelerate the critical work of rebuilding the public’s trust in online content through broad and open adoption of a provenance standard at scale.”); Exec. Order No. 14110, 3 C.F.R. 657 (2024) (treating content provenance and watermarking standards as self-evidently beneficial transparency measures, without addressing governance of the underlying infrastructure); Council Regulation 2024/1689, ch. IV, art. 50, ¶ 2, 2024 O.J. (L) 82 (EU) (mandating machine-readable labeling of AI-generated outputs that are “effective, interoperable, robust and reliable” without note of the infrastructure ownership).Show More This Essay argues that such framing obscures the distributive stakes. The emerging regime favors those who already possess recognized brands, access to legal departments, and the capital to build proprietary infrastructure. It promises to entrench the dominance of large platforms and legacy media organizations while offering little to individual creators who lack pre-existing fame.6 6.For the Law and Political Economy framework applied here, see Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784 (2020).Show More

While legal scholarship has extensively diagnosed the erosion of the incentive paradigm, it has yet to fully articulate replacing it. Mark Lemley has persuasively argued that the digital age renders IP’s artificial scarcity inefficient,7 7.Mark A. Lemley, IP in a World Without Scarcity, 90 N.Y.U. L. Rev. 460, 470–71 (2015).Show More and Pamela Samuelson has warned against rushing to create sui generis rights for AI outputs.8 8.See Pamela Samuelson, Generative AI Meets Copyright, 381 Sci. 158, 160–61 (2023).Show More Yet, the critical question remains unanswered: if the economic logic of incentivizing creation is collapsing, how is value being enclosed in its absence? This Essay provides the first unified account of that replacement regime, offering both a diagnostic tool for the post-incentive economy and a prescriptive path to prevent the authentication regime from becoming a form of private enclosure.

This Essay proceeds in four Parts. Part I documents the collapse of the incentive paradigm. Part II analyzes the emerging regime of provenance and private control. Part III turns to political economy, arguing that the triple-lock structure systematically advantages incumbents over entrants. Part IV proposes that the Library of Congress could serve as a public root of trust—a “digital notary” that prevents the infrastructure of authenticity from becoming a private toll road.

  1.  AI Is Upending the Porn Industry, The Economist, Nov. 29, 2025, at 55, 55. ↑
  2.  Id. at 56; Todd Spangler, OnlyFans Gross Revenue Rises 9% to $7.2 Billion in 2024, Variety (Aug. 22, 2025, at 05:01 PT), https://variety.com/2025/digital/news/onlyfans-fiscal-‌2024-revenue-earnings-1236495750/. ↑
  3.  Rose Henderson, OnlyFans Has Paid Creators $25 Billion Since 2016, CEO Says, Bloomberg (Oct. 21, 2025, at 11:06 ET), https://www.bloomberg.com/news/articles/2025-10‌-21/onlyfans-has-paid-creators-25-billion-since-2016-ceo-says. ↑
  4.  U.S. Const. art. I, § 8, cl. 8. ↑
  5.  See, e.g., C2PA Founding Press Release, Coal. for Content Provenance & Authenticity (Feb. 22, 2021), https://c2pa.org/c2pa-founding-press-release/ [https://perma.cc/47CF-7‌5QN] (“With the collective expertise of this group, we will accelerate the critical work of rebuilding the public’s trust in online content through broad and open adoption of a provenance standard at scale.”); Exec. Order No. 14110, 3 C.F.R. 657 (2024) (treating content provenance and watermarking standards as self-evidently beneficial transparency measures, without addressing governance of the underlying infrastructure); Council Regulation 2024/1689, ch. IV, art. 50, ¶ 2, 2024 O.J. (L) 82 (EU) (mandating machine-readable labeling of AI-generated outputs that are “effective, interoperable, robust and reliable” without note of the infrastructure ownership). ↑
  6.  For the Law and Political Economy framework applied here, see Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale
    L.J.

    1784 (2020). ↑

  7.  Mark A. Lemley, IP in a World Without Scarcity, 90 N.Y.U. L. Rev
    .

    460, 470–71 (2015). ↑

  8.  See Pamela Samuelson, Generative AI Meets Copyright, 381 Sci. 158, 160–61 (2023). ↑
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