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Full-Text Articles in Law

Speech And Strife, Robert L. Tsai Nov 2016

Speech And Strife, Robert L. Tsai

Robert L Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …


Democracy's Handmaid, Robert L. Tsai Nov 2016

Democracy's Handmaid, Robert L. Tsai

Robert L Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …


The Briseno Dilemma, T. Alper, S. Rudenstine Aug 2016

The Briseno Dilemma, T. Alper, S. Rudenstine

Ty Alper

No abstract provided.


The Briseno Dilemma, T. Alper, S. Rudenstine Aug 2016

The Briseno Dilemma, T. Alper, S. Rudenstine

Ty Alper

No abstract provided.


Surprised By Sin: Human Rights And Universality, Tawia Baidoe Ansah Feb 2016

Surprised By Sin: Human Rights And Universality, Tawia Baidoe Ansah

Tawia B. Ansah

International human rights law's claim to universality, at the level of normative formation, has been shaped by conceptions of the self over time. The metaphysical reconfigurations of the self, from the Enlightenment to the present, have marked the human rights narrative in particular ways. This essay will suggest that since World War II, a conception of the self within a narrative of rights has been replaced, or at least countermanded, by a conception of sacral evil, with profound implications for the normative claim to universality of the human rights discourse. The essay begins with a synoptic analysis of the rise …


War: Rhetoric And Norm-Creation In Response To Terror, Tawia Baidoe Ansah Feb 2016

War: Rhetoric And Norm-Creation In Response To Terror, Tawia Baidoe Ansah

Tawia B. Ansah

Everything is very simple in war," said Carl von Clausewitz, "but the simplest thing is difficult." This essay will suggest that the resort to the language of war, as "natural" and "starkly simple" as it is, nevertheless has a profound impact on how the law's intervention is shaped, or how the laws governing the transnational use of force are interpreted to accommodate a "war" on terrorism. I argue that although "war" is absent from the principal international legal instruments by which states are guided (and obligated) in their relations with other states, the concepts suppressed by this elision have an …