Copyright (c) 2017 American University Washington College of Law All rights reserved. http://digitalcommons.wcl.american.edu Recent documents in Digital Commons @ American University Washington College of Law en-us Sun, 09 Jul 2017 01:35:53 PDT 3600 http://digitalcommons.wcl.american.edu/pub_disc_media/12 http://digitalcommons.wcl.american.edu/pub_disc_media/12 Fri, 09 Jun 2017 13:12:51 PDT Ira Robbins http://digitalcommons.wcl.american.edu/pub_disc_media/11 http://digitalcommons.wcl.american.edu/pub_disc_media/11 Fri, 09 Jun 2017 13:12:49 PDT Letter to the editor of the ABA Journal about an article from the March 2007 edition that addressed Tobacco Litigation.

]]> Ira Robbins http://digitalcommons.wcl.american.edu/pub_disc_media/10 http://digitalcommons.wcl.american.edu/pub_disc_media/10 Fri, 09 Jun 2017 13:12:47 PDT Ira Robbins http://digitalcommons.wcl.american.edu/pub_disc_media/9 http://digitalcommons.wcl.american.edu/pub_disc_media/9 Fri, 09 Jun 2017 13:12:45 PDT Ira Robbins http://digitalcommons.wcl.american.edu/pub_disc_media/8 http://digitalcommons.wcl.american.edu/pub_disc_media/8 Fri, 09 Jun 2017 13:12:42 PDT Discusses Professor Robbins' ... "critique ... in The Tulane Law Review in an article by Ira P. Robbins, a law professor at American University. It was called “Hiding Behind the Cloak of Invisibility,” and it considered “per curiam” opinions, ones issued “by the court” without indication of authorship. “In the first six years of Chief Justice Roberts’s tenure,” Professor Robbins wrote, “almost 9 percent of the court’s full opinions were per curiams.”"

]]> Ira Robbins http://digitalcommons.wcl.american.edu/pub_disc_media/7 http://digitalcommons.wcl.american.edu/pub_disc_media/7 Fri, 09 Jun 2017 13:12:40 PDT Ira Robbins http://digitalcommons.wcl.american.edu/pub_disc_media/6 http://digitalcommons.wcl.american.edu/pub_disc_media/6 Fri, 09 Jun 2017 13:12:38 PDT Ira Robbins http://digitalcommons.wcl.american.edu/pub_disc_media/5 http://digitalcommons.wcl.american.edu/pub_disc_media/5 Fri, 09 Jun 2017 13:12:36 PDT Robbins on the use of the middle finger as a taboo.

]]> Ira Robbins http://digitalcommons.wcl.american.edu/pub_disc_media/4 http://digitalcommons.wcl.american.edu/pub_disc_media/4 Fri, 09 Jun 2017 13:12:34 PDT Ira Robbins http://digitalcommons.wcl.american.edu/pub_disc_media/3 http://digitalcommons.wcl.american.edu/pub_disc_media/3 Fri, 09 Jun 2017 13:12:32 PDT Janie Chuang’s article was cited and she was quoted in this Washington Post magazine article. There’s also a companion hour-long radio show, Reveal: https://www.revealnews.org/episodes/host-of-problems/, which includes an interview with Janie about her work.

]]> Janie Chuang http://digitalcommons.wcl.american.edu/pub_disc_media/2 http://digitalcommons.wcl.american.edu/pub_disc_media/2 Fri, 09 Jun 2017 13:12:30 PDT "Many au pairs have wonderful, formative experiences, seeing much of the States and building lifelong relationships. But others say they have been subjected to mistreatment by host families or agencies. One Arlington, Va., au pair — who worked up to 75 hours a week, plus nights, caring for a colicky baby — became the subject of American University law professor Janie Chuang’s critique of the au pair program, published in the Harvard Journal of Law and Gender in 2013. Another local au pair, Edna Valenzuela, was featured in news accounts after her agency initially refused to extend her visa so she could receive free, potentially life-saving treatment following a cancer diagnosis — despite the support of her host family, the fact that she could not receive the care at home and the assurances of the American doctor who was treating her that she’d be able to continue working. (She is now cancer-free as a result of the treatment she was able to receive in the States.)"

]]> Janie Chuang http://digitalcommons.wcl.american.edu/facsch_lawrev/488 http://digitalcommons.wcl.american.edu/facsch_lawrev/488 Thu, 08 Jun 2017 17:33:51 PDT As a body of work, the poetry of Langston Hughes presents a vision of how members of a political community ought to comport themselves, particularly when politics yield few tangible solutions to their problems. Confronted with human degradation and bitter disappointment, the best course of action may be to abide by the ethics of melancholy citizenship. A mournful disposition is associated with four democratic virtues: candor, pensiveness, fortitude, and self-abnegation. Together, these four characteristics lead us away from democratic heartbreak and toward renewal. Hughes’s war-themed poems offer a richly layered example of melancholy ethics in action. They reveal how the fight for liberty can be leveraged for the ends of equality. When we analyze the artist’s reworking of Franklin Roosevelt’s orations in the pursuit of racial justice, we learn that writing poetry can be an exercise in popular constitutionalism.

]]> Robert Tsai http://digitalcommons.wcl.american.edu/facsch_lawrev/487 http://digitalcommons.wcl.american.edu/facsch_lawrev/487 Thu, 08 Jun 2017 17:33:49 PDT This is a review of Howard Schweber's book, "The Language of Liberal Constitutionalism" (Cambridge University Press, 2007). Schweber argues that "the creation of a legitimate constitutional regime depends on a prior commitment to employ constitutional language, and that such a commitment is both the necessary and sufficient condition for constitution making." I critique the power and limits of this reformulated Lockean thesis, as well as Schweber's secondary claims that, for constitutional language to remain legitimate, it must increasingly become autonomous, specialized, and secular.

]]> Robert Tsai http://digitalcommons.wcl.american.edu/facsch_lawrev/486 http://digitalcommons.wcl.american.edu/facsch_lawrev/486 Thu, 08 Jun 2017 17:33:47 PDT Around the time of the Bicentennial Celebration of the U.S. Constitution’s framing, Sanford Levinson called upon Americans to renew our “constitutional faith.” This Article answers the call by explicating the ways in which two landmark constitutional law decisions—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 legal symbols 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 Marbury, whose facts are unknown to the average American, has spawned an insulated message for legal insiders, while Brown, whose central holding is known by most citizens, acts as a unifying force in judicial thought. In fact, the opposite is true. Serving as a talisman of judicial might, Marbury evokes a popular myth of the reluctant lawgiver, as well as an entrenched juricentric belief in law. Despite its rehabilitation for ordinary Americans, in the minds of judges, Brown, now a generation removed from its date of decision, has come to refract lasting memories of social strife and the closing of the judicial mind. Ultimately, neither legal symbol, as it is understood today, offers a particularly uplifting ideal of justice or the judicial power. But what has grown grotesque can be shorn at the roots, and what has withered may yet be nursed back to vigor.

]]> Robert Tsai http://digitalcommons.wcl.american.edu/facsch_lawrev/485 http://digitalcommons.wcl.american.edu/facsch_lawrev/485 Thu, 08 Jun 2017 17:33:45 PDT In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah’s Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of terror visited upon Jehovah’s Witnesses in the wake of Gobitis. Drawing upon previously unearthed archival material, this article for the first time attributes a major role to presidential initiative. A sophisticated strategy implemented by the Roosevelt administration systematically eroded the picture of political life constructed by Gobitis, presented an alternative reading of the First Amendment in urgent fashion, and rhetorically empowered advocates for the pro-rights position. Despite what many believed to be a deliberative moment, however, the Supreme Court incompletely memorialized the interaction between the branches of government. In copying the President’s words without attribution and purging the record of executive branch participation, the Barnette Court impoverished our appreciation of the constitutional system in action. Understanding the remarkable debate over the right of conscience within this paradigm sheds light on a variety of enduring questions, from the strategies utilized by presidents to control political pathways, to the origins of the First Amendment’s centrality to the modern order.

]]> Robert Tsai http://digitalcommons.wcl.american.edu/facsch_lawrev/484 http://digitalcommons.wcl.american.edu/facsch_lawrev/484 Thu, 08 Jun 2017 17:33:43 PDT 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 committed to basic notions of democratic self-rule. Rather than call Brown simply a terrorist or a common criminal, it is more accurate to understand him as a practitioner of “fringe constitutionalism,” in which a patriot turns to unconventional, even violent tactics, on behalf of deep governing principles. The individual straddles traditional cultural and legal categories, taking advantage of such complexities in the name of constitutional transformation.

]]> Robert Tsai http://digitalcommons.wcl.american.edu/facsch_lawrev/483 http://digitalcommons.wcl.american.edu/facsch_lawrev/483 Thu, 08 Jun 2017 17:33:40 PDT 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 contends that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but also promotes acceptance of interpretive prerogative and creates sustainable constitutional subcultures, with their attendant myths, counter-narratives, hero figures and villains, and sacred mantras. It links citizens to governing institutions, and bridges diverse communities of interest. Metaphor is bound up with the motivations of the Justices and the development of legal doctrine, and marks the steady ascendancy of the American Supreme Court to the center of cultural and legal life. To illustrate these themes, the article examines the appearance of the fire metaphor and fire-inspired legal sayings in the Court’s free expression rulings over time, drawing on the work of cultural anthropologists, legal theorists, and cognitive linguists. Launched in early speech decisions involving socialist ideology, and reinvented in more recent cases involving cross-burning and the Internet, the fire motif has had a long pedigree. By tracing the Court’s invocation of fire across the decades, we can uncover a wealth of information about the interaction between rule and myth, legal doctrine and symbol. Born in the early part of the Twentieth Century during turbulent times, the fire metaphor has enjoyed an integral role in the construction of our free speech folklore. Across historical epochs and amid social upheavals, it has alternately collaborated with and jousted with other free speech metaphors and icons. The curious life of this remarkable, though often overlooked, language composition tells us much about the institution of the Court, our modes of constitutional discourse and myth-making, and the interactive nature of legal change.

]]> Robert Tsai http://digitalcommons.wcl.american.edu/facsch_lawrev/482 http://digitalcommons.wcl.american.edu/facsch_lawrev/482 Thu, 08 Jun 2017 17:33:38 PDT 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, Professor 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 model, metaphors, metonyms, and other idioms serve as integral features of democratic institution-building. An especially resonant metaphor spreads democratic ideology efficiently and aggressively. The composition helps to create the appearance of political rule as continuous and timeless. It also renders law accountable to the people – by reestablishing the terms of community through this language device in the course of litigation and public debate, ordinary citizens can redirect the very path of higher law. In short, popular language legitimates constitutional regimes and builds support among the people themselves.

]]> Robert Tsai http://digitalcommons.wcl.american.edu/facsch_lawrev/481 http://digitalcommons.wcl.american.edu/facsch_lawrev/481 Thu, 08 Jun 2017 17:33:36 PDT This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

]]> Robert Tsai et al. http://digitalcommons.wcl.american.edu/facsch_lawrev/480 http://digitalcommons.wcl.american.edu/facsch_lawrev/480 Thu, 08 Jun 2017 17:33:33 PDT 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 a constitution, but also in its implementation. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how confronting the practice of borrowing may illuminate or improve prominent theories of constitutional lawmaking.

]]> Nelson Tebbe et al.