Notre Dame Law Review

Articles from Vol. 88, No. 3, February

Crowdfunding Securities
INTRODUCTION The new federal CROWDFUND Act authorizes the "crowdfunding" of securities, defined as the sale of unregistered securities over the Internet to large numbers of retail investors, each of whom only invests a small dollar amount. (1) This...
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Death of Paradox: The Killer Logic beneath the Standards of Proof
The prevailing but contested view of proof standards is that fact-finders should determine facts by probabilistic reasoning. Given imperfect evidence, they first should ask themselves what they think the chances are that the burdened party would be...
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Free Exercise of Religion before the Bench: Empirical Evidence from the Federal Courts
We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause,...
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Incentivizing Local Reform and Urban Renewal during an Economic Crisis
INTRODUCTION "We've reached the limits of suburban development: People are beginning to vote with their feet and come back to the central cities." --Shaun Donavan (1) More and more people, especially young people, are choosing to live in central...
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Preemption as Inverse Negligence per Se
Federal preemption of state tort claims has been a controversial and frequently litigated issue over the past decade, arguably constituting the most important, if confusing, development in tort law over that period. Books, (1) law review symposia,...
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Statutory Proximate Cause
INTRODUCTION Federal statutes often use general causal language to describe how an actor's conduct must be connected to harm for liability to attach. For example, a statute might state that harm must be "because" of certain conduct. (1) Federal...
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The Market Power Model of Contract Formation: How Outmoded Economic Theory Still Distorts Antitrust Doctrine
Transaction cost economics ("TCE") has radically altered industrial organization's explanation for so-called "non-standard contracts," including "exclusionary" agreements that exclude rivals from access to inputs or customers. According to TCE, such...
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The Plight of the Secular Paradigm
Ever since the Peace of Westphalia, or in any case since the Enlightenment, or possibly from the enactment of the American Constitution, or at least since the early twentieth century, or most definitely over the last couple of decades or so, it has...
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The Pyrrhic Victory of American Higher Education: Bubbles, Lemons, and Revolution
INTRODUCTION While mingling with an old high-school friend--let's call him Troy--at a wedding recently, the conversation took an unexpected turn. I asked him how his work at the local grain elevator had been going; he retorted that it was great,...
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The Tort Foundation of Duty of Care and Business Judgment
This Article corrects a misconception in corporation law--the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board's duty of care implies exposure to liability, but the business judgment rule precludes...
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Virtue Jurisprudence and the American Constitution
INTRODUCTION For most of the current period of legal thought, legal realism or instrumentalism have been the strongest forces at work in the field. (1) This has coincided with the rise in popularity of the theories of deontology or consequentialism...
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