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Full-Text Articles in Law
Securing Deliberative Democracy, James E. Fleming
Securing Deliberative Democracy, James E. Fleming
Faculty Scholarship
The brochure for the conference frames the questions for our panel on The Constitutional Essentials of Political Liberalism as "What are the implications of Rawls's conceptions of justice as fairness and political liberalism for constitutional theory? Might his account of constitutional essentials provide a useful guiding framework for conceiving the scheme of basic liberties embodied in the American Constitution? How thin are the commitments of our Constitution as compared with our richer commitments to constitutional justice and political justice? What are the implications of Rawls's work for theory of judicial review and for enforcement of constitutional rights and obligations outside …
Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai
Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai
Faculty Scholarship
From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …
Speech And Strife, Robert L. Tsai
Speech And Strife, Robert L. Tsai
Faculty Scholarship
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, I argue 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, I distinguish between formal legal argumentation …