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Keynote Address: Staying Afloat And Engaged In Today's Flooded Marketplace Of Speech, Michael Y. Scudder Jun 2019

Keynote Address: Staying Afloat And Engaged In Today's Flooded Marketplace Of Speech, Michael Y. Scudder

Notre Dame Law Review

The contributions to this Symposium cover substantial ground, address important issues, and offer much to react to. This Symposium, I submit, also occurs at a time of significance for the First Amendment in the Supreme Court. Perhaps the Court’s most fervent and consequential defender of free speech, Justice Anthony Kennedy, has retired. His impact on American constitutional law was enormous, including, in my view, in the area of free speech. I had the privilege of clerking for Justice Kennedy, admire him deeply as judge and person, and want to offer some reflections on what I see as a few ...


Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel May 2019

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are ...


Ensuring Justice Without "Beating The Deal", Sean P. Flynn Feb 2019

Ensuring Justice Without "Beating The Deal", Sean P. Flynn

Notre Dame Law Review Online

In 1950 military justice changed drastically with the enactment of the Uniform Code of Military Justice (UCMJ). The UCMJ brought many protections to service members that were standard in civilian criminal practice, but there still existed differences between the two systems. Recent changes to the UCMJ eliminated more of those differences. The Joint Service Committee recommended further changes, which were accepted, to the way the military handles guilty pleas and plea agreements in the Rules for Courts-Martial (RCM), which govern the procedure and substance of courts-martial. The primary change discussed here is the removal of the military’s “beat the ...


Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich Jan 2019

Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich

Notre Dame Law Review

Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aversion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are ...