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September 1, 2004

SPARKS AND FREE SPEECH – UO Law Scholar Selected for National Forum

Constitutional law professor Robert L. Tsai tracks the use of fire in 100 years worth of legal discussions and decisions on free speech from the sparks of revolution to the fires of nationalism to the threatening torch of overregulation. In a paper selected in a blind reading by leading scholars, he talks about the courts as today’s mythical firefighters and why they may not be the best defenders of our basic rights. Tsai will present his paper to legal luminaries at the Stanford-Yale Young Faculty Forum in New Haven this June. He is the first representative from the UO and the only presenter from a Northwest law school this year.


A young University of Oregon law professor who just completed his second year of teaching will present a paper on fire metaphors and free speech at one of the most prestigious academic legal forums in the country. In a blind judging, Robert Tsai’s paper was one of seventeen papers selected for the fifth annual Stanford-Yale Junior Faculty Forum on June 4 and 5 at Yale Law School in New Haven, Connecticut. Tsai, who teaches constitutional law, is the first representative from the UO and the only presenter from a Northwest law school this year.


To have someone from our law faculty involved in the national conversation at this level is thrilling, said law academic dean Margaret Paris. U.S. Supreme Court justices, for example, are involved in this and they will want to read Robert Tsai’s paper.


Robert L. Tsai, 32, who joined the law faculty in 2002, will present Fire, Metaphor and Constitutional Myth-Making before other law professors, judges and scholars at the event. His paper traces fire metaphors used since the turn of the 20th century in First Amendment discussion shouting fire in a crowded theater is a familiar example to explore how legal phrases and metaphors have affected the development of our legal system.


Increasingly we see fire and speech woven together to promote expanded First Amendment liberties, Tsai said. In the early days of the republic, unregulated speech was often described as sparks threatening the civic order. Today, the word torch is more often used to describe overregulation of speech as a danger to constitutional order, he said, The part of the mythical firefighter, once played by the government, is now more often played by the Supreme Court.


Tsai believes the firefighter change of identity could be bad news for American citizens: Not only are courts not the best-placed to safeguard our rights, but the hope that the courts will save us’ lets public officials off the hook and could very well foster a climate in which more rights are abridged.


Next fall, his article will appear in the Georgetown Law Journal, the sixth most-cited law review in the United States. Excerpts entitled Burning Down A House To Roast A Pig will also be published in Legal Affairs, a national general-interest law magazine.


Founded in 1999, the Stanford-Yale forum was the brainchild of two professors one from each school who wanted to create a formal meeting place for enthusiastic newcomers and experienced legal scholars. The forum offers concentrated, individual attention for the new scholars and a chance for established faculty to build relationships with the next generation.


Each year, senior colleagues from the top U.S. law schools select unpublished papers by young faculty with fewer than seven years teaching experience for presentation, discussion and critique


In 2004, over 150 papers were submitted — a record, according to conference organizers. Tsai’s paper was judged by Stanford Law School Dean Kathleen Sullivan and Bruce Ackerman, the Sterling Professor of Law and Political Science at Yale.


I’m excited to have my ideas dissected by professors Sullivan and Ackerman, two of the leading constitutional thinkers of their generation, Tsai said.


Tsai, a naturalized citizen who immigrated with his parents to the United States from Taiwan in the mid 1970s, knew he wanted to teach, write and be read from an early age. No one in his mother’s family had attended college. His father, who escaped from China and became a judge in Taiwan, had to begin again for the second time in North America. The elder Tsai learned how to cook at a Seattle hotel and ran a café in Port Townsend, Washington with his family for over 20 years.


Robert L. Tsai earned a B.A. in history and political science from UCLA in 1993 and a law degree from Yale in 1997. Before joining the UO law faculty, he clerked for two federal judges and was staff counsel for the ACLU in the state of Georgia, specializing in constitutional litigation in federal and state courts. His cases involved free expression, religious freedom, equal protection of the law, privacy, search and seizure, and open government.


As an immigrant with two working-class parents, I suppose I have always had a keen appreciation for both the idealistic and coercive qualities of law, Tsai said. The promise of America was held out clearly: Navigate the Byzantine system of immigration law and The Dream’ is open to you. But make a mistake and it’s back to the wretched or less fulfilling- society from whence you came. I’m lucky that the first path has been my fate.

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