Faculty Bibliography
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Jesse Choper, Richard Fallon, Jr., Yale Kamisar & Steven Shiffrin, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2008).
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By judicious editing and careful summarizing of the most important Supreme Court cases, the four co-authors of Leading Cases in Constitutional Law have managed to produce a set of constitutional law teaching materials under 900 pages.
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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.
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This Article provides a broad-lens, synoptic perspective on war-on-terrorism questions arising within the habeas corpus jurisdiction of the federal courts. Analytically, it develops a clear framework for sorting out the tangle of jurisdictional, substantive, procedural, and scope-of-review issues that habeas cases often present. Methodologically, it champions a common law—like approach to habeas adjudication under which courts must exercise responsible judgment in adapting both statutory and constitutional language to unforeseen exigencies. The Article also takes substantive positions on a number of important issues. In the jurisdictional domain, it defends the Supreme Court’s controversial decision in Rasul v. Bush, which interpreted the habeas statute as it then stood to authorize inquiry into the lawfulness of detentions at Guantí¡namo Bay. The Article also argues, however, that a court would overstep if it read the Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in the D.C. Circuit, the Article argues that the resulting scheme is constitutionally valid as applied to most cases in which the D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in the United States or at Guantí¡namo Bay from challenging their detention or conditions of confinement before a civilian court. With respect to substantive rights, the Article argues that American citizens seized outside of battlefield conditions have a right not to be detained indefinitely without civilian trial. It explains why the constitutional rights of noncitizens are more limited, but argues that existing statutes should not be read to authorize aliens’ detention as enemy combatants when they are seized in the United States, away from any theater of combat. Finally, the Article analyzes some of the most important procedural and scope-of-review questions likely to come before habeas courts.
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The history and practice of strict judicial scrutiny are widely misunderstood. Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. It did not clearly originate in race discrimination cases, as some have suggested, nor in free speech jurisprudence, as Justice Harlan once claimed. Although strict scrutiny is widely assumed to be “strict in theory, but fatal in fact,” judicial practice in applying it has been complex, even conflicted. There are at least three identifiable versions of strict scrutiny, all subsumed under the same label. The result is uncertainty and sometimes confusion about which version the U.S. Supreme Court will apply in which cases. Some of the confusion arises from the strict scrutiny test’s vague and ambiguous terms, which leave critical questions unanswered. Seeking answers to those questions through normative rather than doctrinal inquiry, this Article argues that the strict scrutiny test is best understood as mandating a proportionality inquiry. At least when challenged regulations would at best reduce risks or incidences of harm, rather than extirpate them completely, courts applying strict scrutiny must ask whether the benefits justify the costs in light of regulatory alternatives that would trench less deeply on constitutional rights but also be less effective in promoting their goals.
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Richard H. Fallon, Executive Power and the Political Constitution, 2007 Utah L. Rev. 1.
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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.
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Bicentennial celebrations of Marbury v. Madison should recognize Marbury's influence in shaping a body of constitutional law that is not only rich and diverse but also tension-ridden. Marbury furnishes the canonical statement of the judicial role, but that statement is multiple, not singular. Specifically, Marbury exhibits three distinct faces. A "private-rights" face asserts that courts must decide constitutional issues when, but only when, necessary to adjudicate traditional disputes involving concrete injuries. A "special-functions" face implies that courts have a broader role in enforcing constitutional norms. A "political" or "prudential" face, which is suggested by Marbury's surrounding facts, counsels that courts should sometimes tailor their rulings to avoid collision with the political branches. Marbury's three faces frequently yield conflicting prescriptions. What is more, all help to shape contemporary constitutional law. The result is widespread doctrinal tension. In the literature on constitutional law and theory, varied strategies have emerged for dealing with the challenges and cognitive dissonance that doctrinal tension generates. Some strategies seek to establish doctrinal coherence through creative interpretation, policy-driven reform, or historical reconstruction. Others attempt to explain and disarm doctrinal conflict. But no one strategy can satisfy all of the demands for ordered understanding that a participant in constitutional practice might reasonably assert. Richness and diversity are the glory of Marbury's legacy, but tension and methodological disagreement are also integral to its heritage.
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In this Essay, Professor Richard Fallon explains and defends the constitutional status of stare decisis. In part, Professor Fallon responds to a recent article by Professor Michael Stokes Paulsen, who argues that Supreme Court adherence to precedent is a mere “policy,” not of constitutional stature, that Congress could abolish by statute. In particular, Paulsen argues that Congress could enact legislation denying precedental effect to Supreme Court decisions establishing abortion rights. In reply, Professor Fallon contends that Paulsen's argument depends on contradictory premises. If stare decisis lacked constitutional stature, then under Paulsen's methodological assumptions it also would be indefensible as a “policy,” because a mere policy could not legitimately displace results that the Constitution otherwise would require. In defending the constitutional status of stare decisis, Professor Fallon develops arguments based on the text, structure, and history of the Constitution. But he emphasizes that the “legitimacy” of stare decisis is supported, partly independently, by its entrenched status and by the contribution that it makes to the justice and workability of the constitutional regime. More generally, Professor Fallon argues that constitutional legitimacy rests upon the relatively contestable bases of widespread acceptance and reasonable justice, and not upon “consent” to be governed by the written Constitution.
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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.
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Richard H. Fallon, Judicial Legitimacy and the Unwritten Constitution: A Comment on Miranda and Dickerson, 45 N.Y.L. Sch. L. Rev. 119 (2001).
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Symposium in Honor of Dean Emeritus Harry H. Wellington: IV. Constitutional Law and the Supreme Court .
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Both within the Supreme Court and among scholarly commentators, a debate rages about when litigants should be able to challenge statutes as "facially" invalid, rather than merely invalid "as applied." To a large extent, this debate reflects mistaken assumptions. There is no single distinctive category of facial, as opposed to as-applied, litigation. All challenges to statutes arise when a litigant claims that a statute cannot be enforced against her. In the course of as-applied litigation, rulings of facial invalidity sometimes occur, but they do not reflect trans-substantive rules governing a purported general category of facial challenges. Rather, rulings that a statute is facially (or partly) invalid are the consequence of the particular doctrinal tests applied to resolve particular cases. Some doctrinal tests call for statutes to be tested on their faces, whereas others do not. Accordingly, debates about the permissibility of facial challenges should be re-cast as debates about the substantive tests that should be applied to enforce particular constitutional provisions. Third-party standing rules introduce a further element of plurality into the forms of constitutional adjudication. The resulting doctrinal structure is diverse, but probably no more so than are the rights that constitutional litigation seeks to vindicate.
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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.
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My basic thesis is that, in American constitutional law, rights typically do not operate, as we often assume, as conceptually independent constraints on the powers of government. We have no way of thinking about constitutional rights independent of what powers it would prudent or desirable for government to have. Balancing tests offer an obvious, banal example: the interests supporting claims of right are balanced against interests in upholding governmental power to determine what rights we actually have. But there are other, deeper interconnections as well. Throughout our structure of constitutional discourse, I shall argue, rights are conceptually interconnected with, and occasionally even subordinate to, governmental powers.
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Richard H. Fallon, Enforcing Aviation Safety Regulations: The Case for a Split-Enforcement Model of Agency Adjudication, 4 Admin. L.J. 389 (1991).
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Although article III of the Constitution provides that the judicial power of the United States shall be vested in courts whose judges enjoy life tenure and protection from salary reduction, longstanding precedent and practice establish that Congress may create courts that lack these guarantees of judicial independence. In this Article, Professor Fallon criticizes the amorphous balancing test that the Supreme Court has recently employed to determine the constitutional permissibility of delegations of adjudicative power to non-article III federal tribunals. After identifying the competing practical and constitutional values, he argues that the best accommodation lies in an "appellate review" theory. Professor Fallon's theory broadly justifies congressional employment of non-article III tribunals to engage in initial adjudications, but holds that appellate review in a constitutional court is minimally necessary to protect article III values. To demonstrate that his suggested approach is workable as well as normatively attractive, Professor Fallon examines areas of the law in which appellate review has traditionally been regarded as unnecessary. He concludes that an appellate review theory requires few changes in current practice. Finally, the Article discusses the necessary scope of review by a constitutional court for article III's underlying values to be protected adequately.
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Richard H. Fallon, To Each According to His Ability, From None According to His Race: The Concept of Merit in the Law of Antidiscrimination, 60 B.U. L. Rev. 815 (1980).
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