Richard H. Fallon, Jr.

Story Professor of Law

Biography

Richard H. Fallon, Jr., joined the Harvard Law School faculty as an assistant professor in 1982, was promoted to full professor in 1987, and is currently the Story Professor of Law and an Affiliate Professor in the Government Department. Fallon is a graduate of Yale University (History, 1975) and Yale Law School (1980). He also earned a B.A. degree in Philosophy, Politics, and Economics from Oxford University (1977), which he attended as a Rhodes Scholar. Before entering teaching, Fallon served as a law clerk to Judge J. Skelly Wright and to Justice Lewis F. Powell of the United States Supreme Court. Fallon has written extensively about Constitutional Law and Federal Courts Law. He is the author of The Dynamic Constitution (Cambridge University Press, 2d ed. 2013) and Implementing the Constitution (Harvard University Press, 2001) and a co-editor of Constitutional Law: Cases-Comments-Questions (12th edition 2015) and Hart & Wechsler’s The Federal Courts and the Federal System (7th ed. 2015). Fallon is a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute. He is a two-time winner of Harvard Law School’s Sacks-Freund Award (2001 and 2006), which is voted annually by the School’s graduating class to honor excellence in teaching.

Areas of Interest

Richard H. Fallon, Jr., The Dynamic Constitution: An Introduction to American Constitutional Law and Practice (Cambridge Univ. Press 2013).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Abstract
In this revised and updated second edition of The Dynamic Constitution, Richard H. Fallon, Jr., provides an engaging, sophisticated introduction to American constitutional law. Suitable for lawyers and non-lawyers alike, this book discusses contemporary constitutional doctrine involving such issues as freedom of speech, freedom of religion, rights to privacy and sexual autonomy, the death penalty, and the powers of Congress. Through examples of Supreme Court cases and portraits of past and present Justices, this book dramatizes the historical and cultural factors that have shaped constitutional law. The Dynamic Constitution, Second Edition combines detailed explication of current doctrine with insightful analysis of the political culture and theoretical debates in which constitutional practice is situated. Professor Fallon uses insights from political science to explain some aspects of constitutional evolution and emphasizes features of the judicial process that distinguish constitutional law from ordinary politics.
Richard H. Fallon, Jr., The Core Of An Uneasy Case For Judicial Review, 121 Harv. L. Rev. 1693 (2008).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Courts
,
Federalism
Type: Article
Abstract
The best case for judicial review in politically and morally healthy societies does not depend (as is commonly believed) on the idea that courts are more likely than legislatures to define vague rights correctly. It rests instead on the subtly different ground that legislatures and courts should both be enlisted to protect fundamental rights and, accordingly, that both should have veto powers over legislation that might reasonably be thought to violate such rights. In developing this case for judicial review, Professor Fallon proceeds by confronting recent, influential, philosophically probing arguments against judicial review by Professor Jeremy Waldron. Professor Fallon concedes arguendo that, as Professor Waldron argues, courts are no better than legislatures at defining rights correctly, but maintains that the crucial question is not whether courts or legislatures are less likely to err, but which kinds of errors are most important to avoid – those that result in rights being overprotected or those that result in rights being infringed. Insofar as judicial review can be designed to prevent errors in just one direction, involving failures to protect rights adequately, then judicial review may be supportable even if courts are no better than legislatures at identifying rights correctly. Professor Fallon also argues, contra Professor Waldron, that judicial review can actually contribute to the political legitimacy of an otherwise democratic scheme of government when the demands of political legitimacy are understood correctly. Professor Fallon’s revised justification for judicial review, which does not presume courts to be better than legislatures at identifying fundamental rights, has important implications for how judicial review should be practiced. It implies a diminished role for courts in cases in which fundamental rights are pitted against one another, such that the overenforcement of one entails the underenforcement of the other. It also implies that courts should withhold review when legislatures conscientiously seek to protect one fundamental right without plausibly threatening another.
Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787 (2005).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Administrative Law & Agencies
,
Congress & Legislation
,
Courts
,
Judges & Jurisprudence
Type: Article
Abstract
Legitimacy is a term much invoked but little analyzed in constitutional debates. Uncertainty and confusion frequently result. This Article fills a gap in the literature by analyzing the idea of constitutional legitimacy. It argues that the term invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy - legal, sociological, and moral. When we examine legitimacy debates with these three concepts in mind, striking conclusions emerge. First, the legal legitimacy of the Constitution depends more on its present sociological acceptance than on the (questionable) legality of its formal ratification. Second, although the Constitution deserves to be recognized as morally legitimate, it is only "minimally" rather than "ideally" so: it is not morally perfect, nor has it ever enjoyed unanimous consent. Third, because the Constitution invites disagreement about what it means and how it should be interpreted, many claims about the legal legitimacy of practices under the Constitution rest on inherently uncertain foundations. Significantly, however, a virtual consensus exists that at least some judicial precedents suffice to support future claims of legitimate judicial authority, even when those precedents were themselves erroneously decided in the first instance. Like the legal legitimacy of the Constitution, the legal legitimacy of precedent-based decisionmaking arises from sociological acceptance. Fourth, in the absence of greater legal and sociological consensus, judgments about many purportedly legal questions, including questions of judicial legitimacy, frequently reflect assumptions about the moral legitimacy of official action. Realistic discourse about constitutional legitimacy must therefore reckon with the snarled interconnections among constitutional law, its sociological foundations, and the felt imperatives of practical exigency and moral right.
Jesse Choper, Richard Fallon, Jr., Yale Kamisar, Steven Shiffrin, Michael Dorf & Frederick Schauer, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2016).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
Legal Education
Type: Book
Abstract
An annually-revised paperback designed for a single-semester course on constitutional law, this book is roughly half the length of many hardcover casebooks.
Richard H. Fallon, Jr., On Viewing the Courts as Junior Partners of Congress in Statutory Interpretation Cases: An Essay Celebrating the Scholarship of Daniel J. Meltzer, 91 Notre Dame L. Rev. 1743 (2016).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Courts
,
Statutory Interpretation
Type: Article
Abstract
In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this Essay may sometimes blur the line between explication and original argumentation. Its methodology is, accordingly, risky, but I do not believe it is misplaced. As I hope will become clear, my blending of descriptive and interpretive claims with normative argumentation in some ways parallels the approach that Dan thought courts should take in acting as Congress’s junior partners.
Richard H. Fallon, Jr., Constitutionally Forbidden Legislative Intent, 130 Harv. L. Rev. 523 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
Type: Article
David J. Barron, In Memoriam: Daniel J. Meltzer, 129 Harv. L. Rev. 397 (2015).
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Biography & Tribute
Type: Article
Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235 (2015).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Statutory Interpretation
Type: Article
Abstract
Debates about legal interpretation frequently bypass or give short shrift to the more basic concept of legal "meaning." Seeking to rectify that deficiency, this Article explores the meaning of "meaning." Examination of familiar terms of legal argument reveals an astonishing number of possible senses of that term - and, correspondingly, an equally large number of possible referents for ultimate claims concerning what legal provisions mean. These referents include a statutory or constitutional provision's semantic or literal meaning, its contextual meaning as framed by the shared presuppositions of speakers and listeners, its "real" conceptual meaning, and its intended, reasonable, and previously interpreted meanings. Proponents of interpretive theories such as textualism and originalism sometimes suggest that legal meaning depends on prelegal, linguistic facts that make one of these kinds or senses of meaning uniquely correct. But that suggestion reflects a misunderstanding about how language works. Framing the challenge for legal interpretation as that of choosing the normatively best referent for claims of legal meaning from among otherwise eligible candidates, this Article shows that textualism and originalism, in particular, lack the resources to make the unique, consistent, categorical selections and exclusions that some versions of those theories purport to achieve. Like a variety of other interpretive theories, they lapse into reliance on case-by-case normative judgments. When understood against the background of a careful delineation of the choices that legal interpretation requires, the aspirations of textualism and originalism help to frame a fundamental question: Given the function of interpretive theories to guide or determine choices among otherwise plausible senses of legal meaning, should such theories do so on a categorical or a case-by-case basis? This Article advocates the latter approach. A due appreciation of the interpretive challenge - which frequently requires a choice among the literal, con-textually framed and limited, real conceptual, intended, reasonable, and interpreted meanings of statutory and constitutional provisions - reveals the stark hubris of proposals that commit in advance to categorical selections or even categorical exclusions.
Richard H. Fallon, Jr., The Fragmentation of Standing, 93 Tex. L. Rev. 1061 (2015).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
,
Courts
Type: Article
Abstract
The application of the doctrine of standing has become less and less predictable since the Supreme Court’s adoption of a tripartite test for standing in the 1970s. Professor Fallon analyzes the Court’s decisions in standing cases in order to discern patterns in the Court’s application of this test. Fallon concludes that the Supreme Court and legal scholars should embrace the fragmentation of the doctrine of standing and look to discernable patterns in the cases to find general rules of application for different contexts.
Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753 (2015).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Eleventh Amendment
,
Statutory Interpretation
,
Supreme Court of the United States
Type: Article
Abstract
Part I presents the thesis that the Supreme Court frequently undertakes a multiplicity of history-based inquiries and weighs a variety of historically grounded considerations. Part I also argues (as some originalists recognize, but stringently exclusive originalists do not) that the original meaning of constitutional language was frequently vague or indeterminate. Accordingly, the Constitution’s application to current issues would often require a mix of historical and normative analysis even if original history were the only kind of history that mattered. Part II offers a preliminary exploration of why so many kinds of historical inquiry bear on constitutional and sometimes on statutory cases. Part III advances a jurisprudential argument in favor of a multi-factored approach to constitutional decisionmaking. Arguing that the foundations of law, including American constitutional practice, necessarily reside in social facts involving what is accepted as binding law, Part III establishes the radical, revisionary character of calls for exclusive originalism. Part IV defends what—adapting vocabulary from Professor David Strauss—I call a common law approach to determining the relative importance of varied kinds of historical phenomena in reaching conclusions of constitutional law. It analyzes a mixture of “easy” and “hard” federal courts cases to illustrate that almost no one, outside the context of a methodological debate about how to resolve understandably disputable cases, actually is an exclusive originalist, but that widespread convergence of judgment about the proper decision of constitutional cases typically occurs anyway. Part IV explains calls for exclusive originalism as the product of a largely misplaced anxiety about untrammeled judicial subjectivity. Part V provides a brief conclusion.
Richard H. Fallon, Jr., Greatness in a Lower Federal Court Judge: the case of J. Skelly Wright (Special Issue Dedicated to Judge J. Skelly Wright), 61 Loyola L. Rev. 29 (2015).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Abstract
As much as - if not more than - any other lower federal court judge of his generation, J. Skelly Wright left large footsteps on the sands of time. As a district judge for the Eastern District of Louisiana from 1949 to 1962, he took a courageous leading role in desegregating the New Orleans schools. Braving social ostracism, death threats, and a cross-burning on his lawn, he brought about "not only the integration of the public schools in New Orleans but also the integration of universities, buses, parks, sporting events and voting lists, historic moves that reverberated elsewhere in the South in the 1950s and 1960s, the era of the civil rights campaigns." As a judge on the U.S. Court of Appeals for the District of Columbia Circuit from 1962 to 1988, Judge Wright wrote path-breaking opinions in a number of areas of the law. Many of his decisions attracted widespread academic commentary, most of it favorable but some critical. Welcoming the debates, Judge Wright published an accompanying stream of much-discussed articles in the nation's foremost law reviews. When Wright died in 1988, tributes described him as among "the outstanding jurists of the nation's history.
Richard H. Fallon, John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System (Found. Press 7th ed. 2015).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Legal Profession
Sub-Categories:
Jurisdiction
,
Federalism
,
Separation of Powers
,
Supreme Court of the United States
,
Legal Education
Type: Book
Abstract
The Seventh Edition of this classic casebook brings it thoroughly up to date (as of December 31, 2014) and includes numerous revisions to enhance its teachability. The book’s depth of coverage and intellectual rigor remain unrivaled. In addition, each chapter has been carefully revised with an eye to making the material more accessible to students. A number of new introductory and explanatory notes help to frame the key issues raised by the materials. Moreover, the editors’ judicious revision and trimming of older material will permit assignments of manageable length, without sacrificing the scholarly comprehensiveness that has always been the Hart & Wechsler hallmark.
Richard H. Fallon, Jr., A Salute to Justice Breyer’s Concurring Opinion in Van Orden v. Perry, 128 Harv. L. Rev. 429 (2014).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
Religion
,
Biography & Tribute
Type: Article
Richard H. Fallon, Jr., Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation - and the Irreducible Role of Values and Judgment Within Both, 99 Cornell L. Rev. 685 (2014).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Statutory Interpretation
,
Supreme Court of the United States
Type: Article
Richard H. Fallon, Jr., Interpreting Presidential Powers, 63 Duke L.J. 347 (2013).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Executive Office
,
Statutory Interpretation
,
Supreme Court of the United States
Type: Article
Abstract
Justice Holmes famously observed that “[g]reat cases . . . make bad law.” The problem may be especially acute in the domain of national security, where presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates. On the one hand, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes. On the other hand, to credit the authority of executive precedent risks leaving the president dangerously unbound. To address the conundrum posed by executive precedent, this Article proposes a two-tiered theory for the interpretation of presidential powers. Framed as an analogy to a position in moral philosophy known as “threshold deontology,” two-tiered interpretive theory treats rules that restrict executive power as normally inviolable, not subject to a case-by-case balancing analysis. Analogously to threshold deontology, however, two-tiered theory also recognizes that when the costs of adherence to ordinary principles grow exorbitantly high, extraordinary interpretive principles should govern instead and should result in the upholding of broad presidential power. For reasons that the Article explains, resort to extraordinary reliance on second-tier justifications for assertions of sweeping executive authority involves a legal analogue to “dirty-handed” moral conduct and should be labeled accordingly. And executive precedents set in extraordinary, second-tier cases should not apply to more ordinary ones. Through its conjunction of elements, two-tiered interpretive theory furnishes analytical and rhetorical safeguards against executive overreaching, but also allows accommodations for truly extraordinary cases.
Richard H. Fallon, Jr., Why Absention is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Statutory Interpretation
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
When Professor Martin Redish condemned abstention doctrines as violating norms of "institutional legitimacy," he provoked an informative debate, but one that has largely subsided. This Essay revisits the once-heated debate about abstention's legitimacy, clarifies its terms, and identifies its stakes. The legitimacy question is not whether abstention decisions are legally correct, but whether applicable statutes and the Constitution render such decisions ultra vires. Most often, the answer to that question is no. Recent versions of both textualist and purposivist theories of statutory interpretation recognize that statutory meaning always depends on "context." And when relevant statutes are read in a sufficiently capacious semantic context (as textualists would insist) or policy context (as purposivists would demand), abstention emerges as justified in some cases. Indeed, if abstention were illegitimate, then a number of other federal courts doctrines-many of which are difficult to justify by reference either to the language of pertinent statutes or to Congress's most pressing purposes in enacting them-would be illegitimate also.
Jesse Choper, Richard H. Fallon, Jr., Yale Kamisar & Steven Shiffrin, Constitutional Law: Cases, Comments, and Questions (West 11th ed. 2011).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
Legal Education
Type: Book
Abstract
This long-popular constitutional law casebook has been thoroughly revised and updated. The Notes and Questions, which have long been a hallmark of the book, present a wide range of perspectives for students to consider, rather than reflecting a single point of view that users of the book must either adopt or teach against. Professors will especially like the illuminating and provocative extracts from the literature that accompany the recent right to bear arms; war on terror; and corporate political campaign expenditure cases. Chapters on the Dormant Commerce Clause and State Action have been significantly reorganized; and the Equal Protection sections on school integration and affirmative action have been enlarged to account for Parents Involved v. Seattle School District. The authors have significantly tightened the material on abortion, procedural due process, and takings.
Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 Calif. L. Rev. 915 (2011).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
,
Statutory Interpretation
Type: Article
Abstract
The Justices of the U.S. Supreme Court have frequently insisted that “facial challenges” to the validity of statutes are and ought to be rare. Based partly on an empirical survey of all cases decided by the Court during six selected Terms, this Article reveals that assumption to be empirically false and normatively mistaken. Error on this point reflects broader confusions and misunderstandings. For example, it is not true that only a few especially stringent constitutional tests frame facial challenges. Even the rational basis test sometimes yields the conclusion that statutes are invalid in toto. The conventional wisdom also errs in positing that the Supreme Court can cure a statute’s facial defects merely by invoking a general “presumption of severability” under which, in a future case, any of a statute’s invalid applications can be separated from valid ones. Besides revising the conventional wisdom about facial challenges, this Article locates the root of misunderstanding in the rhetoric of a relatively small number of much-cited cases. It also begins the reconstructive task of explaining when facial challenges do and do not succeed. That explanation has three parts. First, there is a crucial linkage between rulings of facial invalidity and the breadth of the reasons that the Supreme Court gives in upholding constitutional challenges. Second, the Court is often inattentive to severability issues, and its practice must be understood accordingly. Although this Article advances important rationalizing generalizations, it explains why the Court’s approach to severability cannot be captured in rigid rules. Third, many Supreme Court decisions rejecting facial challenges are best understood as finding facial challenges to be unripe, rather than categorically unavailable.
Richard H. Fallon, Jr., Implementing the Constitution (Harv. Univ. Press 2001).
Categories:
Constitutional Law
Type: Book
Abstract
This book argues that the Supreme Court performs two functions. The first is to identify the Constitution's idealized "meaning." The second is to develop tests and doctrines to realize that meaning in practice. Bridging the gap between the two--implementing the Constitution--requires moral vision, but also practical wisdom and common sense, ingenuity, and occasionally a willingness to make compromises. In emphasizing the Court's responsibility to make practical judgments, Implementing the Constitution takes issue with the two positions that have dominated recent debates about the Court's proper role. Constitutional "originalists" maintain that the Court's essential function is to identify the "original understanding" of constitutional language and then apply it deductively to current problems. This position is both unwise and unworkable, the book argues. It also critiques well-known accounts according to which the Court is concerned almost exclusively with matters of moral and constitutional principle. Implementing the Constitution bridges the worlds of constitutional theory, political theory, and constitutional practice. It illuminates the Supreme Court's decision of actual cases and its development of well-known doctrines. It is a doctrinal study that yields jurisprudential insights and a contribution to constitutional theory that is closely tied to actual judicial practice.
Richard H. Fallon, Jr., "The Rule of Law" As a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1 (1997).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Courts
,
Judges & Jurisprudence
Type: Article
Richard H. Fallon, Jr., Two Senses of Autonomy, 46 Stan. L. Rev. 875 (1994).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Article
Abstract
A number of commentators have identified autonomy as a central value of the First Amendment. In this essay, Professor Fallon argues that the two leading conceptions of autonomy, positive and negative liberty, are overly simple and flawed. He argues that autonomy-based First Amendment theory should recognize two alternative conceptions: descriptive autonomy, which considers the impact of external causal factors on individual liberty, and ascriptive autonomy, which represents each person's sovereignty over her moral choices. Professor Fallon introduces a four-part framework to gauge the extent to which a person is descriptively autonomous. He notes that ascriptive autonomy is less analytically neat, but argues that the concept is also important to First Amendment jurisprudence because it "reflects an aspect of human self-understanding that descriptive autonomy fails to capture." Professor Fallon then explores the moral and policy issues that arise from distinguishing descriptive from ascriptive autonomy, concluding that both notions of autonomy are fundamental to the First Amendment. He warns, however, that because descriptive and ascriptive autonomy often pull in opposite directions, autonomy-based arguments frequently complicate rather than simplify First Amendment debates.
Richard H. Fallon, Jr. & Paul C. Weiler, Firefighters v. Stotts: Conflicting Models of Racial Justice, 1984 Sup. Ct. Rev. 1 (1984).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Race & Ethnicity
,
Employment Discrimination
Type: Article

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