I am saddened to learn of the passing of Richard Fallon, the Story Professor Law, at Harvard Law School. I have known Dick for more than 40 years. I was in his Federal Courts class during his first year of teaching at Harvard. We exchanged many emails, appeared together at conferences, and engaged each others work in print on many occasions.
Dick Fallon was a a superb teacher, a wonderful human being and a towering figure in constitutional theory. When I learned of his death this morning, I was devastated to lose a treasured friend and colleague far too soon.
My first memories of Fallon are of his Federal Courts class. My friend, Steve Marzen, and I were both in his class, which shaped my teaching methods in a variety of ways. I have vivid memories of Dick writing an outline of the material on the board at the start of each class. In hindsight, I realize that teaching Federal Courts for the first time is a monumental enterprise–daunting because of the complexity of the material and the sheer number of relevant cases. Dick taught from Hart and Wechsler–the famous casebook of which he subsequently became an author. His command of the material seemed magisterial at the time, but I now realize that he must have labored long hours to present a clear, immaculately organized, and erudite vision his first time through the course. He was a magnificent teacher.
Fallon was a great constitutional theorist. His books include The Changing Constitution: Constitutional Law in the Trump-Era Supreme Court (forthcoming in September), Law and Legitimacy in the Supreme Court (winner of the Thomas Cooley Book Prize), Law and Legitimacy in the Supreme Court, The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny, The Dynamic Constitution: An Introduction to American Constitutional Law and Practice, and Implementing the Constitution. There were, of course, many many articles.
Fallon and I engaged in an ongoing debate about constitutional interpretation. I was especially proud of Themes from Fallon on Constitutional Theory, which appeared in the Georgetown Journal of Law and Public Policy in 2020. The title was an intentional echo of Themes from Kaplan, a festshrift for the great philosopher, David Kaplan. Fallon's critique of originalism was especially important. Many critics of originalism utterly failed to engage originalist theory in its strongest form, and it is not unusually to read strident denunciations by prominent scholars that contain basic errors. Fallon, on the other hand, always attempted to engage his opponents with charity, seeking to present their arguments in their strongest form. His criticisms were always analytically deep. In my estimation he has been the most powerful and important critic of originalism–and of course his positive views about constitutional theory are among the most important and influential. In my view, Fallon, the constitutional theorist, stands with Ely and Scalia in the small group of theorists whose views will have lasting importance.
Fallon was extraordinarily kind, patient, and supportive. I will never forget the deep encouragement he gave me as a student. I treasured the dinner invitation he extended to Steve Marzen and me during our third year in law school. And despite our deep disagreements about constitutional theory, Fallon was always supportive, respectful, and encouraging. He was a mentor to me and many others, a treasured colleague, and a friend. I will miss him more than I can say.
If I might offer a word of advice: reach out to the important people in your life and let them know how much you value them! Sometimes, we have the great good fortune of growing old together with our treasured colleagues, but there are no guarantees!