From the Harvard Law Review (with thanks to Prof. Richard Re for the hint):
Four decades ago I enrolled in Dick Fallon’s Federal Courts seminar in the now-demolished wing of Pound Hall. Dick was still young—only thirty-three. It was his third year teaching at Harvard Law School and his third time teaching Federal Courts. Yet even then, more students than could be accommodated sought out his course because they believed it would sharpen their thinking and their skills as lawyers. I took many excellent courses and learned from many outstanding teachers at HLS. But if I had to choose a single one—as the most rigorous, most demanding, and most exciting—I would point to Fallon on Fed Courts.
I’m not sure I would have guessed that on day one. Dick didn’t command the room with an imposing presence. He certainly wasn’t a Kingsfield figure. He was as consistently kind—as gentle—inside the classroom as he was outside of it.
And yet he held the highest standards—for both his students and the law. He treated every issue in Fed Courts as a kind of mystery: What explains how a given doctrine developed? What was its purpose, and how did it operate? Did it achieve its aims, and were those aims worth achieving at all? Each question was hard, every follow-up still harder. Dick demanded more analytic precision, more clarity of thought than any teacher had asked of me before. Time and again, when he called on me, my answers eventually fell short. And it was the most thrilling experience I have ever had in a classroom.
In the middle of that semester, Dick asked Carol Steiker (who would later become one of Dick’s colleagues at HLS) and me to do some work outside class for him. He asked if we would read an article he was drafting and come talk with him about it—to tell him what we thought and how he could improve it. That article appeared the following year as A Constructivist Coherence Theory of Constitutional Interpretation. The worst thing about the title, the best thing about the work, was everything else. I doubt I had a single useful contribution about how to enhance it. The benefit of the experience was utterly on my side. To be invited into an intellectual dialogue with a professor as brilliant as Dick Fallon—and then to soak up all I could from our conversations—blew me away. And it made me think that perhaps I wanted to, and perhaps I could, become a legal academic myself.
Which, I’m quite sure, was the entire point of Dick’s proposal. In the months since his death, I’ve heard countless former students describe the impact he had on their careers. How he gave them, as he gave me, the confidence to pursue a chosen path. Or helped them to develop an idea. Or read multiple drafts of their first article. Or pushed hard for them to secure a position. He was not merely a superb classroom teacher but a consummate mentor. He came to know many students well. He believed their ideas were worth the time and engaged with them as peers. The legal world is full of Harvard Law School alumni grateful to Dick Fallon. I’m certainly one of them.
When I later returned to Harvard as a professor, I realized that Dick possessed a gift for personal connection of every kind. He was the best of colleagues; the best of friends. From David Shapiro and Lloyd Weinreb in an earlier generation to Daphna Renan and Ben Eidelson in a more recent one, I often heard from John Manning and Jack Goldsmith about the pleasures of working closely with Dick. But the person I most saw as perfectly in step with him was Dan Meltzer. In all of its long history, I doubt HLS has seen a partnership like theirs. I think what Dan would say about it is that Dick’s generosity knew no bounds. That Dick made everyone around him better. And that collaborating with Dick, on some of the greatest Federal Courts articles ever written, was one of the prime joys of his academic life.
As much as anyone who has ever graced HLS, Dick loved scholarship. What he wrote was not always fashionable or trendy. In 1986, for example, one had to go against the grain (and by more than a bit) to publish something like A Constructivist Coherence Theory of Constitutional Interpretation. But Dick carried a strong sense of his own identity as a scholar—what he cared about, what he was best suited to do, and what he deemed valuable. And as the years passed, Dick’s scholarship came to be perceived by nearly everyone as of transcendent quality and lasting significance.
Here are the three things I treasure most about it:
First, it treats law—and especially the enterprise of judging—with profound seriousness. Dick did not believe that practicing law was mechanical. He rejected the idea of judges merely “calling balls and strikes.” He thought that various kinds of values had to enter the picture. Yet he also believed that law has a substantive core—that it isn’t simply politics or personal preference wearing a different mask. And Dick held that even when determinacy runs short, law can still be pursued with analytic rigor, fidelity to principle, and fair-mindedness. Law can be practiced, in other words, in the way Dick articulated in his writings: a realistically compelling vision of judging.
Second, and relatedly, Dick took extraordinary care to get things right. He never cut corners in his scholarship. He did not glide over or elide the toughest issues. Dick was a grinder. He did not stop working on an article until he had, to the best of his ability, nailed every issue down. Consequently, his work carries a deep integrity. His articles were not essentially finished before they began; every line flowed from meticulous thought.
Third, Dick always showed respect for those who disagreed. He presented opposing views in their strongest form and in their best light (before proceeding to challenge them). The clearest demonstration is his work on originalism. Dick was not a devotee of the theory, but his writing was scrupulously careful to give its adherents their due. That remains a valuable lesson in these contentious times: Dick did not pull punches, yet he was never anything less than civil—indeed, generous—when engaging with those who held different views.
In my first year on the Court, the Chief Justice assigned me the majority opinion in a case that could have been a Federal Courts exam, Camreta v. Greene. It came out late in the Term, and Dick sent me a letter that summer that contained both praise and sharp critique. All in all, I don’t think Dick agreed with the opinion. But at the end of the letter he wrote: “I will always be proud that I taught Federal Courts to the person who wrote Camreta v. Greene.” I share that line to show that no note I’ve received in more than fifteen years on the bench has ever filled me with more pride. That is how meaningful Dick’s opinion was and remains to me. It was a gift that Dick Fallon was my teacher, both forty years ago and ever since.
