Law Commons^™

Immigration Unilateralism And American Ethnonationalism, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

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This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

John Brown's Constitution, Robert L. Tsai

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It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained …

Recut, Reframe, Recycle: The Shaping Of Fair Use Best Practices For Online Video, Peter Jaszi

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This article discusses the intertwining of creative and copyright practices, as demonstrated by the emergence and evolution of standards to assess fair use in online video from 2007-2009. The development of such standards demonstrates the effectiveness of community-based standards to expand the utility of fair use and the importance of practice in affecting the interpretation of law. This process demonstrates the relationship between copyright practice and creative practice.

Constitutional Borrowing, Robert L. Tsai

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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 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 borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …

Sacred Visions Of Law, Robert Tsai

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Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

Speech And Strife, Robert L. Tsai

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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 …

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

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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 …