Law Commons^™

The Pathological Perspective And The First Amendment, Vincent A. Blasi

Faculty Scholarship

Constitutions are designed to control, or at least influence, future events – political events, adjudicative events, to some extent even interactions between private parties. Yet the future is unknowable, largely unpredictable, and inevitably variable. At any moment there exists a short-run future, a long-run future, and a future in between. The future is virtually certain to contain some progress, some regression, some stability, some volatility. How is a constitution supposed to operate upon this vast panoply?

That is a question that ought to loom large in the deliberations of persons who propose and ratify new constitutions and new constitutional amendments. …

Constitutional Fact Review, Henry Paul Monaghan

Faculty Scholarship

Bose Corp. v. Consumers Union of United States held that the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) does not prescribe the scope of appellate review of a finding of actual malice in defamation cases governed by New York Times Co. v. Sullivan. Rather, as a matter of "federal constitutional law," appellate courts "must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." Thus, in addition to the familiar judicial duty to "say what the law is," the first amendment imposes a special duty with respect to law application: both …