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Richard Fallon

  • The Conservative Justices Don’t Seem Too Worried About the Court’s Legitimacy

    February 16, 2022

    In recent months, the Supreme Court has stepped into one controversy after another—taking a case that threatens affirmative-action programs, creating a road map for states looking to copy Texas’s S.B. 8 and nullify constitutional rights, and using the shadow docket to signal major changes to abortion and voting-rights laws. In a matter of months, the Court seems poised to both dramatically expand gun rights and overrule Roe v. Wade. Polling demonstrates that the Court’s popularity has fallen to an all-time low, driven by perceptions that the justices are partisan. The Court’s conservative majority seems remarkably unconcerned about potential damage to its reputation. That may come as no surprise: Supreme Court justices have lifetime tenure unless they are impeached. ... All of this makes it important to understand what we mean when we talk about the legitimacy of the Supreme Court. As the Harvard Law professor Richard Fallon has shown, defining legitimacy takes some work. It can refer to the Court’s moral standing—a concern most acutely raised in legal systems, such as those of Nazi Germany, that sanction obvious human-rights violations. Legitimacy, too, can refer to the perceptions of the legal community—do lawyers, judges, and academics believe that the justices are using reasonable interpretive methods and applying them in good faith?

  • Supreme Court Justice Stephen Breyer Announces His Retirement At The White House

    On the Court, Breyer had a ‘deeply thoughtful, learned, humane, and pragmatic approach’

    January 27, 2022

    In the wake of the news that Supreme Court Associate Justice Stephen G. Breyer ’64 will retire at the end of the current term, Harvard Law School faculty members offer their thoughts on his tenure, legacy, and how the nation’s highest court could change after his departure.

  • Crowd of protesters waving flags at the U.S. Capitol

    January 6, 2021: Harvard Law experts reflect a year later

    January 4, 2022

    Harvard Law Today asked experts from across Harvard Law School to share their perspectives on January 6, 2021, the events that have unfolded since, and the implications for American democracy going forward.

  • Head shot of man looking to the side

    In Memoriam: Lloyd L. Weinreb: 1936–2021

    December 26, 2021

    Described as one of the great figures in the history of Harvard Law School, Lloyd L. Weinreb ’62, a leading authority on criminal and copyright law, and an HLS professor for nearly a half-century, died Dec. 15, at the age of 85.

  • Critical Moment for Roe, and the Supreme Court’s Legitimacy

    December 6, 2021

    WASHINGTON — Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded. ... As those dueling perspectives reflect, there is no consensus about what legitimacy means. Richard H. Fallon Jr., a law professor at Harvard and the author of “Law and Legitimacy in the Supreme Court,” said there were two primary definitions. One is moral, expressing a judgment about whether the court deserves to be respected. The second is sociological, based on whether people trust the court to make fair and unbiased judgments. Only that second sense, he said, can be captured in public opinion polls.

  • man in gray suit in front of field of wheat

    Faith and fellowship

    May 18, 2021

    Growing up with a father in the Air Force, Mark Gillespie ’21 moved around a lot as a child. But far from this being a negative, Gillespie says it gave him the sense that life’s possibilities were endless.

  • United States Supreme Court in Washington DC

    President Biden appoints 16 Harvard Law School faculty and alumni to panel studying Supreme Court reform

    April 14, 2021

    President Biden appointed 16 members of the Harvard Law School community — seven faculty and nine alumni — to a new presidential commission on the Supreme Court of the United States.

  • Capitol losses

    February 3, 2021

    A virtual gathering titled “The Events of January 6 and the Future of American Democracy” featured HLS Professor Richard Fallon and other Harvard experts assessing the damage done by the Jan. 6 riots at the U.S. Capitol.

  • Richard Fallon

    Fallon receives 2021 Daniel J. Meltzer Award from American Association of Law Schools

    January 22, 2021

    Harvard Law Professor Richard H. Fallon, an award-winning scholar and teacher, has been recognized by the Association of American Law Schools with the 2021 Daniel J. Meltzer Award.

  • Immunity Doctrine Often Shields Police From Lawsuits

    June 10, 2020

    Three days after George Floyd was killed in the custody of Minneapolis police, the Supreme Court’s justices met privately to consider a raft of long-pending appeals asking them to review a legal doctrine that makes it difficult for many victims of abusive policing to sue the perpetrators. The timing was coincidence, and the court has taken no action on the petitions. But the multitude of cases—including one from Minneapolis—underscores the power of qualified immunity, a rule the Supreme Court recognized in 1967, and later strengthened, to protect officials from the threat of litigation for most law-enforcement actions...Congress in 1871 prohibited state and local officials from violating an individual’s civil rights, during its drive to protect newly free African-Americans from repression in the South...The qualified-immunity doctrine emerged nearly a century later, when in 1967 the Supreme Court said clergymen arrested in 1961 for refusing to leave a bus terminal’s whites-only waiting room in Jackson, Miss., couldn’t sue police officers for violating their rights, since Mississippi’s segregated bus terminals weren’t found unconstitutional until 1965...A turning point came in a 1982 case, Harlow v. Fitzgerald, when the court dismissed a case filed by a former Air Force official alleging that Nixon White House aides fired him for exposing “shoddy purchasing practices.” The decision, by Justice Lewis Powell, freed official defendants from having to demonstrate they acted in good faith, a requirement he said permitted too many “insubstantial claims” to move forward. “Part of Powell’s concern was that police officers might hesitate when they shouldn’t hesitate just out of fear of personal liability,” said Harvard law professor Richard Fallon, who as a law clerk helped the justice draft the Harlow opinion. But the doctrine doesn’t operate “the way Powell thought it operated” because in practice officers don’t pay judgments themselves—police departments do, Mr. Fallon said. “If the officers have immunity, de facto you get immunity for police departments,” he said.

  • Faculty Books in Brief: Summer 2019

    August 5, 2019

    Books by Cass Sunstein, Mihir Desai, Roberto Mangabeira Unger, and Richard Fallon.

  • Illustration of two people in judges robes holding a funnel with the words we the people flowing through them

    Faculty Books in Brief: Summer 2019

    June 19, 2019

    A single person cannot change a social norm; it requires a movement from people who disapprove of the norm, writes Sunstein. He explores how those movements, ranging from the fight for LGBTQ rights to white nationalism, take shape and effect change.

  • health app illustration

    Faculty Books in Brief: Winter 2019

    January 30, 2019

    With the increased use of a massive volume and variety of data in our lives, our health care will inevitably be affected, note the editors of a new collection, one of the recent faculty books captured in this section.

  • Collins says justice’s respect for precedent will protect Roe v. Wade. Experts disagree.

    July 10, 2018

    ...Richard Fallon Jr., a constitutional law professor at Harvard Law School and former staffer to Collins’ first boss, then-U.S. Rep. William Cohen, says justices must balance two competing legal principles in considering a case: respect for precedent and fidelity to the Constitution. Sometimes these can be in tension, as in a case such as Brown v. Board of Education, where justices overturned a century of cases defending racial segregation in public schools because they violated the Constitution.

  • Supreme Court prepares for right turn

    March 28, 2018

    As the White House and Congress descend deeper into turmoil, the US Supreme Court is showing signs of becoming as politically fractured as the rest of Washington. It may likewise be shifting more to the right...Unlike in past eras when individual justices were not so predictable based on party, the current five appointed by Republican presidents generally vote along conservative lines, and the four named by Democratic presidents vote on the liberal side. The incendiary atmosphere of the Obama and Trump eras and the increasingly polarized judicial confirmation process may be creating a more polarized Supreme Court. "There are no more stealth justices, no more surprises," said Harvard University law professor Richard Fallon. "That means the person (a president chooses) is going to have a strong disposition to line up on one side or another" accelerating conflict on the court.

  • Mentors, Friends and Sometime Adversaries 4

    Mentors, Friends and Sometime Adversaries

    November 29, 2017

    Mentorships between Harvard Law School professors and the students who followed them into academia have taken many forms over the course of two centuries.

  • Courses on Law, Politics Draw Crowds on First Day of Classes

    August 31, 2017

    Harvard undergraduates bid their final farewell to summer Wednesday as they crowded classrooms and lecture halls on the College’s first day of classes. Though some classes consistently popular with students, like Economics 10a: “Principles of Economics” and Statistics 104: “Introduction to Quantitative Methods for Economics,” received expectedly high turnouts, others not as well known also drew large numbers...Richard H. Fallon, a Law School professor who teaches Government 1510, said the large turnout in his course may be due to increased interest in the U.S. Constitution. “If you want to speculate, we seem to be in a political climate in which we lurch from one looming constitutional crisis to the next,” Fallon said.

  • Bill Cohen’s lessons from Watergate

    May 30, 2017

    Bill Cohen was certain of one thing in June of 1974: The voters of Maine would not send him back to Congress. The 33-year-old Bangor mayor had been elected to the U.S. House of Representatives less than two years earlier but had done something unthinkable to many of his Republican colleagues and constituents: He’d voted to hold a president of his own party accountable to congressional investigators, opening a path that could lead to his impeachment...Harvard University law professor Richard Fallon was then Cohen’s press secretary. “I was 22 years old and had not even graduated from college yet,” he recalls. “It’s striking to me in retrospect how hugely junior his staff was, with no lawyers on it. My sense was that he just took those transcripts and went off by himself and pored over them so he could be as prepared as he could be for every set of questioning. He wrote all his Watergate speeches, and he handled almost all the national media stuff himself. My role was pretty much limited to cranking out press releases for the Maine media.”

  • A War of Words?

    May 23, 2017

    Martin Shkreli—the price-hiking former pharmaceutical executive once dubbed the “most hated man in America”—hadn’t even started speaking when someone pulled the fire alarm...Quickly, Shkreli’s visit brought questions of free speech—what it means, and what, if anything, justifies its limitation—to the forefront of campus discourse. While some students argued that Shkreli should be free to state his views on campus, others said his appearance was dangerous and provocative without substance...Richard H. Fallon, a professor at Harvard Law School who teaches a course on the First Amendment, said that he thinks the University has dedicated itself to the protection of free speech. “On the whole, Harvard is absolutely an institution committed to freedom of speech,” Fallon said.

  • Trump’s travel ban could have far-reaching consequences for presidential power

    March 8, 2017

    President Trump's new executive order sets up a court battle that could create a long-lasting precedent for presidential power — and not just on immigration law. Trump rewrote his travel ban order Monday, hoping to fortify it against court challenges that have argued that it discriminates against Muslims. A key question now is: If the first order was discriminatory in its intent, can a rewrite of the order make that intent go away? "This case about the president's authority will undoubtedly be tremendously consequential for the scope of executive authority going forward," said Richard Fallon, a Harvard law professor.

  • HLS Profs Score High on Judicial Impact, But Women Fall Short

    September 2, 2016

    Harvard Law professors rank highest nationwide in the judicial impact of their legal scholarship, according to a new study examining citations of law review articles by U.S. high courts, but no women scholars across the country placed in the top 25. The study ranked the top 25 law professors according to the number of judicial citations their scholarly works receive, and Harvard Law School professors Richard H. Fallon, Cass R. Sunstein ’75, and John F. Manning ’82 claimed the top three spots...Fallon described the challenge law professors face in trying to bridge two groups—“practicing lawyers and judges” and “more theoretically minded professors and students”—whose interests often diverge. “I would like to think that we at Harvard Law School do a good job at keeping a foot successfully in both camps.”...Manning, who wrote in an email that he believes that judicial citations are not the most meaningful measure of scholarly impact, thinks that women should already rank higher. “By any reasonable measure of quality of legal scholarship (which citation counts capture only very imperfectly), there are certainly women who belong in the top 25,” he wrote.

  • Ranking Law Professors by Judicial Impact

    August 25, 2016

    Chief Justice John Roberts may not think much of legal scholarship coming out of the academy these days, but judges (or at least their clerks) do read law reviews. That much is apparent in a new study gauging the judicial impact of articles published in peer-reviewed and student-edited law journals. ...Below is the paper’s ranking of professors by judicial citations. The top three all come from Harvard law school: constitutional scholars Richard Fallon and Cass Sunstein and administrative law professor John Manning. UCLA professor and Washington Post legal blogger Eugene Volokh and Yale professor Akhil Amar follow right below them.

  • The forgotten history of Justice Ginsburg’s criticism of Roe v. Wade

    March 3, 2016

    Justice Ruth Bader Ginsburg is the Supreme Court’s most ardent protector of abortion rights, outspoken enough about their importance to become an icon to young feminists and a source of outrage among her detractors...."Although she cares deeply about abortion rights, I would guess that she may have had less of an impact in this area than she might have wished," said Richard Fallon, a Harvard law professor who studies the court.

  • The forgotten history of Justice Ginsburg’s criticism of Roe v. Wade

    March 2, 2016

    Justice Ruth Bader Ginsburg is the Supreme Court’s most ardent protector of abortion rights, outspoken enough about their importance to become an icon to young feminists and a source of outrage among her detractors. With her valedictory on the court undetermined but within sight, Ginsburg, 82, may have only one more chance to leave a mark on reproductive rights. It comes in the most consequential abortion case during her time on the court...“Although she cares deeply about abortion rights, I would guess that she may have had less of an impact in this area than she might have wished,” said Richard Fallon, a Harvard law professor who studies the court.

  • Harvard Law School: 2015 in review

    December 17, 2015

    Supreme Court justices, performance art, student protests and a vice president. A look back at 2015, highlights of the people who visited, events that took place and everyday life at Harvard Law School.

  • Top Constitutional Lawyers Explain What the Second Amendment Really Says About Gun Control

    December 15, 2015

    In the wake of the shooting in San Bernardino, California, prominent conservative politicians have again squashed momentum to step up gun regulation, using the Second Amendment to make their case for maintaining the status quo....Mic spoke with several top constitutional lawyers who reject outright the notion that the Second Amendment prohibits increased limitations on access to guns. Instead, they argue that the Constitution actually allows for a number of gun regulations which have been proposed in Congress, including universal background checks and bans on assault weapons..."The right to bear arms was thought to ensure well-regulated state militias," Harvard constitutional law professor Richard J. Fallon told Mic. "Regulation of firearms was permissible as long as it did not interfere with state militias."...Other constitutional lawyers go even further, saying that although conservatives may not want to admit it, Heller actually paved the way for more gun control restrictions. "I believe 'assault weapons' are indeed what the court had in mind when it wrote in Heller about 'dangerous and unusual weapons," Harvard Law professor and renowned legal scholar Laurence Tribe told Mic. "I believe military-style assault weapons will never be protected by the court in the name of the Second Amendment."

  • Kennedy Key to Same-Sex Marriage Decision, Law Profs Say

    June 29, 2015

    Following the Supreme Court’s landmark decision Friday that same-sex couples have a constitutional right to marriage, several Harvard Law School professors said Justice Anthony M. Kennedy, who authored the majority opinion, played an extraordinary role in advancing the cause. “The majority opinion by Justice Kennedy was a triumph of reason and passion alike,” Law School professor and former Supreme Court clerk Laurence H. Tribe ’62 wrote in an email. ... Law School professor Michael J. Klarman wrote that Friday’s decision “confirms the extraordinary influence” of Kennedy, adding that he believes Kennedy is “the most powerful justice in history.” ... Law School professor Richard H. Fallon agreed that people opposed to same-sex marriage may be angry about the verdict, they are unlikely to act politically, given a shift in public support for same-sex marriage in recent years.  

  • Professor Daniel Meltzer

    In Memoriam: Daniel J. Meltzer ’75

    May 26, 2015

    Daniel J. Meltzer '75, a renowned legal scholar and expert on federal courts and criminal procedure, and a valued legal advisor to President Barack Obama ’91, died on May 24, after a courageous battle with cancer. Meltzer was the Story Professor of Law at Harvard Law School, where he served on the faculty since 1982.

  • Supreme Court Will Likely Uphold Affordable Care Act, Law Profs Say

    March 9, 2015

    Last week’s oral arguments in King v. Burwell suggest that the United States Supreme Court will uphold the Affordable Care Act, according to several Harvard Law School professors...“I would say for people who hoped that the Court would permit the subsidies to be paid, it was a very encouraging oral argument,” said Richard H. Fallon, a law school professor...In particular, professors said Kennedy’s line of questioning suggests that he could vote to uphold the ACA. Einer R. Elhauge, a professor at the Law School, said it seemed “very likely” that Kennedy would vote to uphold the law as it exists now, providing the required fifth vote...Noah R. Feldman ’92, another professor at the Law School, also identified Kennedy as a potential vote in favor of the Obama Administration. “The clear news was that Justice Kennedy is thinking seriously about a problem with the challengers’ interpretation,” he said...For his part, University Professor Laurence H. Tribe ’62 predicted a 6-3 decision in favor of upholding the ACA.

  • Same-Sex Marriage Likely, Not Guaranteed, Law School Profs Predict

    January 22, 2015

    Following a Supreme Court decision last Friday to hear arguments on the issue of same-sex marriage, several Harvard Law School professors predict that the Court will grant a historic constitutional right to same-sex marriage nationwide, but they say a more moderate outcome remains a possibility...“I would guess that the best reading of the tea leaves is that there will be five votes upholding a right to gay marriage,” Richard H. Fallon, a Law School professor, said. He along with Charles Fried and Michael J. Klarman, also Law School professors, identified Justice Anthony Kennedy as the potential “swing vote.”...Law School professor and former Supreme Court clerk Laurence H. Tribe ’62 echoed the prediction in an email, writing that the he thinks the Court will “hold that the U.S. Constitution requires universal marriage equality.”...Mark V. Tushnet ’67, a Law School professor and former Supreme Court clerk, said that the addition of the second question allows the Court to “deal with the issue comprehensively, no matter the which way the first question came out.”

  • Tomiko Brown-Nagin

    The U.S. Supreme Court: Reviewing last year’s decisions (video)

    October 17, 2014

    In a discussion moderated by Professor John Manning, five Harvard Law School professors, Tomiko Brown-Nagin, John Coates, Richard Fallon, Charles Fried and Intisar Rabb, assessed last year’s Supreme Court decisions and shared their thoughts on those rulings.

  • Supreme Court lets stand state rulings allowing same-sex marriage

    October 7, 2014

    The Supreme Court’s surprising move to pass on deciding whether state prohibitions on same-sex marriage violate the U.S. Constitution may reflect two things about the justices: a natural inclination for incremental steps and a worry on the part of conservatives that the battle — for now — appears lost...“I’m astonished,” said Richard Fallon, a Harvard law professor who is a student of the court. Neither side of the court’s ideological split has enough motive to insist that the issue be taken up now, he believes. “There are some justices who aren’t in any hurry to take this, and four who are worried they are going to lose,” Fallon said.

  • After Abortion Ruling, Mass. Pushes To Replace Buffer Zone Law

    July 22, 2014

    Just three weeks after the U.S. Supreme Court struck down a Massachusetts law that created a 35-foot buffer zone around clinics that perform abortions, lawmakers there are rushing through a replacement. The new bill, which they hope to pass before the legislative session ends in two weeks, would give police more power to disperse unruly protesters…Harvard Law professor Richard Fallon says that in spirit, at least, Massachusetts has done what the court directed. “What’s innovative about this is that it’s a buffer zone triggered by bad conduct, and it’s a narrower buffer zone,” he says. “But then the questions will be whether this is narrow enough.”

  • Supreme Court rulings to reverberate in midterm elections this fall

    July 8, 2014

    Following this week’s Supreme Court ruling that some businesses can refuse to offer contraceptive coverage to employees for religious reasons, a prominent antiabortion group used the case as an argument against Sen. Mark Pryor of Arkansas and other Democrats seeking reelection...Harvard Law School professor Richard Fallon said the high court rarely has had a major impact on off-year elections. But “if we’re in a new era of politics” in which the base plays an increasingly important role, he said, “it’s more possible that it would matter.”

  • Sideview of man sitting outside in a chair

    At the Top of His Game

    July 1, 2014

    For half a century, Lloyd Weinreb has improved our minds

  • The Supreme Court

    HLS faculty weigh in on Supreme Court rulings

    June 27, 2013

    The U.S. Supreme Court ruled this week on several major cases including United States v. Windsor and Hollingsworth v. Perry in regard to same-sex marriage, Fisher v. University of Texas on Affirmative Action, and Shelby County v. Holder, which concerned the Voting Rights Act of 1965. A number of HLS faculty shared their opinions of the rulings on the radio, television, on the web and in print.

  • First Fiction

    January 1, 2010

    “Stubborn as a Mule,” is set at a small liberal arts college in Maine. The school’s president, a right-wing economist, tries to unseat a Republican Senate moderate (and HLS grad).

  • At annual Supreme Court Forum, experts discuss “system effects” and judicial elections (video)

    December 17, 2009

    The Supreme Court’s 2008 ruling in Caperton v. A.T. Massey was the main focus of the Harvard Law Review’s Supreme Court forum this year. Held annually, the Supreme Court Forum focuses on the Law Review’s Supreme Court issue, which is published in November.

  • 2009 Year in Review: Faculty Publications

    December 14, 2009

    In their book,“No Place to Hide: Gang, State, and Clandestine Violence in El Salvador” (Harvard University Press, 2009), Clinical Professor James Cavallaro and Spring…

  • Battlegrounds

    September 2, 2008

    On executive power, war and anti-terrorism, scholars have a lot to say--and lawmakers are listening.

  • As judicial review is questioned, Fallon offers an answer

    May 15, 2008

    "For a long season," writes Professor Richard Fallon in a major article just published in the Harvard Law Review, the desirability of judicial review of legislation was "a complacent assumption" of American constitutional, political and moral thought.

  • Recent Faculty Books – Fall 2004

    September 1, 2004

    “Raising the Bar: The Emerging Legal Profession in East Asia” (Harvard University Press, 2004), edited by Professor William P. Alford ’77, looks at efforts to recast…

  • Professor Richard H. Fallon

    Fallon on the Supreme Court and Medical Marijuana

    September 1, 2004

    This winter, the U.S. Supreme Court will hear arguments in a tug-of-war between the states and the federal government over drug policy. We asked constitutional law expert Professor Richard H. Fallon to predict how the Court will rule.

  • Charles Fried, Meltzer and Gerken

    Faculty Examine Supreme Court

    April 1, 2004

    Three days after the U.S. Supreme Court kicked off its 2003-2004 term, HLS faculty members evaluated the Court's recent decisions and forecast its upcoming cases.

  • Teaching Lessons

    July 1, 2002

    Guided by their professors, students find HLS a training ground for academic careers.

  • Meltzer and Driver laughing

    The New 1L

    July 1, 2002

    For the first time in decades, HLS has changed the basic structure of its first-year experience, and students and faculty are singing the praises of The New 1L.