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Full-Text Articles in Jurisprudence

Three Arguments About War, Robert Tsai Dec 2014

Three Arguments About War, Robert Tsai

Robert L Tsai

The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual ...


Conclusion — The Migration Of Legal Ideas: Legislative Design And The Lawmaking Process, Robert Tsai Dec 2013

Conclusion — The Migration Of Legal Ideas: Legislative Design And The Lawmaking Process, Robert Tsai

Robert L Tsai

This is the conclusion for an edited volume on legislative usage of foreign and international law, N. Lupo & L. Scaffardi, Legal Transplants and Parliaments: A Possible Dialogue Amongst Legislators? (2014). I assess the general turn in comparative law studies towards the behavior of elected officials, as well as the preference for increased formality in the use of foreign law. The essays in this book analyze the legal experiences of Brazil, Namibia, Australia, South Africa, Spain, the European Union, China, Canada, Portugal, the United Kingdom, the United States, and Italy. Many of these countries (but not all, especially the U.S ...


"Simple" Takes On The Supreme Court, Robert Tsai Dec 2012

"Simple" Takes On The Supreme Court, Robert Tsai

Robert L Tsai

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably ...


Constitutional Borrowing, Nelson Tebbe, Robert Tsai Dec 2008

Constitutional Borrowing, Nelson Tebbe, Robert Tsai

Robert L Tsai

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains surprisingly underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens not only during the drafting of ...