Remembering Richard Fallon

Richard H. Fallon Jr., the Story Professor of Law at Harvard Law School, died on Sunday. Dick was an exemplary scholar and teacher of constitutional law and federal courts. He was also one of the kindest, gentlest, most generous human beings one can come across. The obituary in yesterday's Harvard Crimson captures some of what made Dick so extraordinary, quoting former students as well as colleagues. I share the view expressed by Cass Sunstein, who told the Crimson that Dick combined brilliance and humility in a nearly unique way. In today's tribute, I'll add a personal remembrance.

With the possible exceptions of Laurence Tribe and Daniel Meltzer, who respectively taught me constitutional law and federal courts, and for both of whom I served as a research assistant as a student, no one has had a more profound influence on how I think about my core subjects than Dick. I'm not even sure Dan counts as an exception because Dick did so much of his path-breaking work in federal courts in collaboration with Dan, who also died far too soon.

One of Dick's early articles--A Constructivist Coherence Theory of Constitutional Law--articulated an extraordinarily influential view of how constitutional law is practiced, one that took law seriously but that also recognized the role of values. Dick's view was broadly pluralist. That is to say he recognized that judges and justices offer a variety of kinds of arguments in support of the results they favor.

To be sure, Dick was not the first pluralist. Charles Black's Structure and Relationship in Constitutional Law took for granted the existence of various "modalities" of constitutional argument, as Philip Bobbitt would term them in his own work, some of which pre-dated A Constructivist Coherence Theory. Nor was Dick the first scholar to advance a coherentist approach to constitutional interpretation. Ronald Dworkin's view of law as integrity, which Dworkin applied to constitutional law as well as other branches of law, also got there first. Dick's signal contribution was to articulate the view as a lawyer's lawyer.

One sees the same quality in all of Dick's work. Consider his Harvard Law Review Foreword (and book of the same name) Implementing the Constitution. There, Dick was characteristically realistic about the fact that the Supreme Court does a whole lot in the name of the Constitution that cannot plausibly be understood as interpreting the text. Originalist-flavored scholars like Keith Whittington and Randy Barnett call this project "construction" (as distinct from "interpretation"), but that was too theoretical for Dick, who saw the need for judicial craft and creativity in giving effect to what are often little more than suggestions and vague values.

Ah, but what about Alexander Bickel's countermajoritarian difficulty? Why should judges implement the Constitution at all, rather than leaving its implementation to political actors while simply policing its clear boundaries? Dick was not doctrinaire in his answer. Responding to Jeremy Waldron's critique of judicial review, Dick offered only what he called an "uneasy case for judicial review"--one that points to institutional and procedural comparative advantages of unelected judges versus political actors. Dick's arguments were always uneasy, in the sense that he invariably gave serious consideration to the force of arguments that pointed away from whatever result he thought ultimately correct.

For much of my career, I found myself following Dick. He wrote his Harvard Law Review Foreword in 1997; I wrote mine in 1998. He wrote at length about third-party standing and facial challenges. I did too, trying to build on his important insights. On two separate occasions, I was asked to write responses to Dick's articles. In the late 1990s, the editors of the California Law Review asked me to respond to Dick's How to Choose a Constitutional Theory. My first response was simply, "I agree." I had a similar reaction in 2016, when the editors of the Harvard Law Review asked me to respond to Dick's Constitutionally Forbidden Legislative Intent. Needless to say, I eventually found some points of disagreement (in my response essays respectively here and here), but both of my response essays were more in the nature of the kind of reviews one frequently reads in The New York Review of Books: less a critique of the works under review than the author's own thoughts inspired by those works. Dick's work was always inspiring me in that way.

I've already mentioned (several times) that Dick was legal-realist inflected but not a hardcore legal realist. Dick confirmed that to me about 25 years ago when, at the conclusion of a conference, we were sharing a taxi. Dick said (more or less): "Don't you find it demoralizing that so much of our job as constitutional scholars amounts to trying to read Sandra Day O'Connor's mind?" Justice O'Connor, then the median Justice, did control the outcome in most of the Supreme Court's most high-profile cases, Dick was acknowledging. At the same time, he plainly thought that problematic, and not simply as the product of a design flaw in our constitutional system but because he thought that there could be some greater determinacy to the law, even at the Supreme Court, if the Justices took law a bit more seriously.

Dick's sotto voce comment in the taxi was about as close as I ever heard him come to being snarky. I had the honor to co-edit three successive editions and all of the yearly updates of a constitutional casebook with Dick over the last 16 years--later editions of the casebook that Larry Tribe used back when I took his class in the fall of 1988. Dick and I corresponded frequently and spoke a few times per year about the book but also about other things. Dick was unfailingly generous towards everyone. Even when he thought someone's argument wrongheaded or poorly articulated, he phrased his concern as puzzlement or lack of understanding on his part, not as incoherence, ignorance, or incompetence on the part of whoever made the argument.

When I joined the casebook, I inherited what had been Yale Kamisar's chapters, and Fred Schauer inherited what had been Steve Shiffrin's chapters. When Jesse Choper retired from active participation in updating the book for successive editions and annual supplements, Fred and I split his portfolio. Yale died in early 2022. Steve--whose term as an editor of the casebook did not overlap mine but who was nonetheless a colleague, a collaborator on pro bono work, and a dear friend--died in 2023. We lost Fred last fall. And now Dick.

Like Fred, Dick was unfailingly considerate to the end. His diagnosis came as a complete surprise. On June 15, he nonetheless promptly wrote to me and Sherif Girgis--who is already doing a wonderful job as successor to Fred in working on the casebook's First Amendment chapters--so that the end of his life would not inconvenience us in our end-of-SCOTUS-term work. Copying our principal editor at West, Dick wrote with characteristic grace, generosity, frankness, and no small amount of courage:

Dear Mike & Sherif,

I had no inkling even ... a week ago, but in recent days I have received a definitive diagnosis of terminal cancer and am entering hospice care today. Sorry to dump my problem even in part onto you. But I will be unable to help with either the Supplement or Leading Cases. (I herewith waive all rights to compensation/royalties arising from them.) Mike, you are in the pantheon of collaborators. Sherif, I much looked forward to working with you. Ryan, thanks for so much over so many years. Please keep this message as confidential for the next week or so except as practicalities may dictate.

With warm affection,

Dick

Thus, I had known the end was in sight for a month. It is nonetheless difficult to believe, much less accept. I'll close by repeating what I wrote about Steve, because it is equally apt with respect to Dick: The world is that much darker for having lost Dick's light. I shall miss him terribly. Indeed, I already do.

-- Michael C. Dorf