Things to Read (Dick Fallon Tribute Edition)
Dick Fallon, the Story Professor of Law at Harvard Law School — and a Harvard Law Professor for 43 years (since the year of my birth!) — died this week, and I am very sad about it.
When I published my first law review article as a law clerk, I sent a reprint to Dick, and even though I was nobody, he took the time to read it and write back. This was the first of many conversations and exchanges that I won’t recount here, and I’ll just say here what I said to Dick shortly before he died: that he was an intellectual influence and an academic role model, and I both miss him and admire him.
When a legal scholar dies, I believe that part of our tribute should be to talk about their work. Dick had more books and articles than I can list here, but here are a few of my personal favorites:
New Law, Non-Retroactivity, and Constitutional Remedies (with Dan Meltzer), a piece that has shaped our thinking about the nature of a right to a remedy: “demand[ing] adequate redress to keep government within the bounds of law, but . . . sometimes permit[ting] denial of individually effective relief in particular cases.”
"A Constructivist Coherence Theory of Constitutional Interpretation" and "Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence" two great articles that prefigured the “positive turn” in constitutional theory.
Sexual Harassment, Content Neutrality, and the First Amendment Dog that Didn’t Bark, a prescient article in the Supreme Court Review about the First Amendment implications of sexual harassment law (with a closing coda about the First Amendment and harassment law on college campuses . . . ).
Scholars’ Briefs and the Vocation of a Law Professor, which argued that “many professors compromise their integrity by joining [amicus] briefs too promiscuously.” I think this article probably singlehandedly stopped so many law professors from signing amicus briefs that they shouldn’t; and probably made many others feel a little deserved shame even if they did.
Asking the Right Questions About Officer Immunity, contrarian, and far more insightful than most of what is written about official immunity.
Other classics include Why Abstention Is Not Illegitimate, Jurisdiction-Stripping Reconsidered, As-Applied and Facial Challenges and Third Party Standing, and Of Legislative Courts, Administrative Agencies, and Article III.
And then there is Dick’s novel, Stubborn as a Mule, a delightful campus farce and tribute to his mother. Another underappreciated virtue of this book is how many people will say: “Dick Fallon wrote a novel!?” But of course he did.
Finally, there is Hart & Wechsler’s The Federal Courts and the Federal System. Along with Dan Meltzer and David Shapiro, Dick transformed the book over the course of the 4th, 5th, 6th, and 7th editions, shaping how generations of law students were taught standing, overbreadth, and many other topics. The Eighth Edition, which came out earlier this year after Dick retired from the book, was dedicated to him:
We dedicate this edition to Richard H. Fallon, Jr., whose brilliant mind, extraordinary scholarship, and gentle ways have influenced this field and his many students so profoundly.
There have also been many moving tributes to him posted by friends and colleagues:
May his memory be a blessing.
A really nice tribute. Another one that was really helpful to me was The Ideologies of Federal Courts Law, from 1988.