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Full-Text Articles in Law
Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi
Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi
Faculty Scholarship
Five years ago, Fred Schauer published an article with the intriguing title: "Do Cases Make Bad Law?" Playing off Holmes' observation that "[g]reat cases like hard cases make bad law," Schauer explored the possibility, as he put it, that "it is not just great cases and hard cases that make bad law, but simply the deciding of cases that makes bad law.” His concern, confirmed and deepened by his characteristically balanced inquiry, was that general principles forged in the resolution of specific legal disputes can suffer by virtue of that provenance. Because such principles by definition are meant to carry …
The Meaning Of Dissent, Lee C. Bollinger
The Meaning Of Dissent, Lee C. Bollinger
Faculty Scholarship
There is, and has always been, an abiding tension in first amendment theory. At times, freedom of speech is conceived as having a very practical purpose – as implementing a system designed for yielding truth, or good public policy. Thus, Zechariah Chafee wrote that the first amendment protects the "social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way," and Alexander Meiklejohn spoke frequently of the first amendment as a practical plan for a self-governing society, engendering "wise decisions." This vision of …
The Teaching Function Of The First Amendment, Vincent A. Blasi
The Teaching Function Of The First Amendment, Vincent A. Blasi
Faculty Scholarship
In this important book, Professor Bollinger seeks to understand and remedy the inadequacy he perceives in the way our legal culture deals with extremist speech. He argues that the high level of protection the first amendment has been construed to require serves a social function that has not been fully recognized or carefully evaluated. His thesis is that the contemporary social function of the idea of freedom of speech is to help the society develop a general capacity for tolerance, a capacity that determines how we respond to many forms of conduct as well as speech. Once this function is …