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Richard H. Fallon

Bio: Richard H. Fallon is an academic researcher from Harvard University. The author has contributed to research in topics: Supreme court & Constitution. The author has an hindex of 13, co-authored 47 publications receiving 644 citations. Previous affiliations of Richard H. Fallon include University of Notre Dame & Fordham University.

Papers
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Journal Article
TL;DR: The notion of legal and sociological legitimacy of judicial power has been studied extensively in the literature as discussed by the authors, with a focus on the notion of social legitimacy of a judge's office.
Abstract: TABLE OF CONTENTS INTRODUCTION I. THREE CONCEPTS OF LEGITIMACY AND THEIR OBJECTS A. Legitimacy as a Legal Concept B. Legitimacy as a Sociological Concept C. Legitimacy as a Moral Concept D. An Aside on Legal Positivism and Natural Law E. The Objects of Legitimacy Judgments II. THE LEGITIMACY OF THE CONSTITUTION A. The Relationship Between the Constitution's Moral Legitimacy and Its Legal and Sociological Legitimacy B. Assessing Ideal and Minimal Moral Legitimacy C. What Is the Constitution? D. The Limits of Constitutional Legitimacy III. JUDICIAL LEGITIMACY UNDER THE CONSTITUTION A. Judicial Legitimacy as a Legal Concept 1. The Meaning of Claims of Legal Legitimacy and Illegitimacy 2. Standards for Assessing the Legal Legitimacy of Assertions of Judicial Power B. The Sociological Legitimacy of Judicial Power and Its Exercise 1. Some Conceptual Varieties of Sociological Judicial Legitimacy 2. Assessing the Sociological Legitimacy of Judicial Power (a) The Relationship Between Institutional Legitimacy and the Substantive Sociological Legitimacy of Judicial Decisions (b) Authoritative Legitimacy and Its Limits (c) Measures of Sociological Legitimacy and the Limits of Judicial Power C. The Moral Legitimacy of Judicial Power and Its Exercise D. Three Concepts of Legitimacy: A Test Case IV. LEGISLATIVE, PRESIDENTIAL, AND ADMINISTRATIVE LEGITIMACY A. Legal Legitimacy B. Sociological Legitimacy C. Moral Legitimacy V. CONNECTIONS AND DISJUNCTIONS A. Legal Legitimacy B. Sociological Legitimacy C. Moral Legitimacy D. Conflicts and Priorities VI. CONCLUSION: THE PERSISTING IDEAL OF CONSTITUTIONAL LEGITIMACY Legitimacy is a term much invoked but little analyzed in constitutional debates. Uncertainty and confusion frequently result. This Article fills a gap in the literature by analyzing the idea of constitutional legitimacy. It argues that the term invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy--legal, sociological, and moral. When we examine legitimacy debates with these three concepts in mind, striking conclusions emerge. First, the legal legitimacy of the Constitution depends more on its present sociological acceptance than on the (questionable) legality of its formal ratification. Second, although the Constitution deserves to be recognized as morally legitimate, it is only "minimally" rather than "ideally" so: it is not morally perfect, nor has it ever enjoyed unanimous consent. Third, because the Constitution invites disagreement about what it means and how it should be interpreted, many claims about the legal legitimacy of practices under the Constitution rest on inherently uncertain foundations. Significantly, however, a virtual consensus exists that at least some judicial precedents suffice to support future claims of legitimate judicial authority, even when those precedents were themselves erroneously decided in the first instance. Like the legal legitimacy of the Constitution, the legal legitimacy of precedent-based decisionmaking arises from sociological acceptance. Fourth, in the absence of greater legal and sociological consensus, judgments about many purportedly legal questions, including questions of judicial legitimacy, frequently reflect assumptions about the moral legitimacy of official action. Realistic discourse about constitutional legitimacy must therefore reckon with the snarled interconnections among constitutional law, its sociological foundations, and the felt imperatives of practical exigency and moral right. INTRODUCTION Legitimacy is a term much bruited about in discussions of constitutional law. …

135 citations

Journal Article
TL;DR: Fallon as discussed by the authors argued that the best case for judicial review in politically and morally healthy societies does not rest (as has often been asserted) on the idea that courts are more likely than legislatures to make correct decisions about how to define vague rights of the kind commonly included in bills of rights.
Abstract: TABLE OF CONTENTS I. WALDRON'S ARGUMENT THAT OUTCOME-RELATED REASONS ARE INADEQUATE TO SUPPORT JUDICIAL REVIEW 1701 A. Waldron's Assumptions 1701 B. Which Assumptions Do What Work? 1701 II. PREFERRED RIGHTS AND OUTCOME-RELATED REASONS TO SUPPORT JUDICIAL REVIEW 1704 A. Distinguishing Errors of Underenforcement and Overenforcement of Individual Rights 1704 B. The Limits of the Outcome-Based Case for Judicial Review: Contestable Premises and the Burdens of Judgment 1709 III. PROCESS-BASED REASONS AND POLITICAL LEGITIMACY 1715 A. Waldron's Process-Based Argument--And Its Limits 1716 B. Political Legitimacy and Its Sources 1716 C. Comparative Democratic and Political Legitimacy 1717 1. Anchoring Assumptions 1717 2. Transitional Questions 1719 3. Judicial Review Without Entrenchment 1719 4. Entrenched Rights and Judicial Review 1722 (a) Entrenched Rights Without Judicial Review 1722 (b) Entrenched Rights Coupled with Entrenched Judicial Review 1724 IV. NOTES ON THE DESIGN OF A SYSTEM OF JUDICIAL REVIEW 1726 A. Judicially Reviewable Issues 1727 B. Scope of Review 1730 C. Choosing Strong or Weak Judicial Review 1731 D. Judicial Review in Societies that Are Not Well Ordered 1732 V. CONCLUSION 1733 Richard H. Fallon, Jr. * For a long season, the desirability of judicial review of legislation was a complacent assumption of American constitutional, political, and moral thought. A vigorous debate percolated about how courts should interpret the Constitution, but not much serious discussion addressed whether judicial review should exist at all. Now matters have changed. Although debate continues concerning how courts should make constitutional decisions, distinguished critics have begun to argue for a fundamental rethinking of the role of courts in a democratic culture such as ours. (1) Some advocate the total abolition of judicial review. (2) Having heard the critics, I now believe that the affirmative case for judicial review needs to be partially revised if judicial review is to be defended successfully on the moral high ground of liberal political theory. In a nutshell, the best case for judicial review in politically and morally healthy societies does not rest (as has often been asserted) on the idea that courts are more likely than legislatures to make correct decisions about how to define vague rights of the kind commonly included in bills of rights--on notions, for example, that courts are peculiarly well designed to function as "forum[s] of principle." (3) The best case, as Frank Cross also has argued, (4) rests instead on the subtly different ground that legislatures and courts should both be enlisted in protecting fundamental rights, and that both should have veto powers over legislation that might reasonably be thought to violate such rights. A suggestive, albeit not perfect, analogy comes from the federal jury system in criminal cases, under which a defendant cannot be convicted without the unanimous agreement of the jury, (5) and each of the twelve jurors must vote to acquit unless persuaded that the defendant has been proven guilty "beyond a reasonable doubt." (6) If the concern were simply to get correct judgments about whether the accused had committed a crime, decisions by majority vote, pursuant to a preponderance of the evidence standard, would produce more accurate outcomes. (7) Instead, we skew the system in a pro-defendant direction based on the premise that errors resulting in mistaken convictions of the innocent are morally worse, and thus more important to avoid, than erroneous acquittals of the guilty. (8) In other words, we care less about minimizing the overall number of errors than about minimizing the errors in a particular direction--a situation that might also obtain with respect to judgments involving individual rights. …

82 citations

Book
29 May 2014
TL;DR: In this paper, the authors argue that the Supreme Court performs two functions: the first is to identify the Constitution's idealized "meaning". The second is to develop tests and doctrines to realize that meaning in practice.
Abstract: This text argues that the Supreme Court performs two functions. The first is to identify the Constitution's idealized "meaning". The second is to develop tests and doctrines to realize that meaning in practice. Bridging the gap between the two - implementing the Constitution - requires moral vision, but also practical wisdom and common sense, ingenuity, and occasionally a willingness to make compromises. In emphasizing the Court's responsibility to make practical judgments, "Implementing the Constitution" takes issue with the two positions that have dominated recent debates about the Court's proper role. Constitutional "originalists" maintain that the Court's essential function is to identify the "original understanding" of constitutional language and then apply it deductively to current problems. This position is both unwise and unworkable, the book argues. It also critiques well-known accounts according to which the Court is concerned almost exclusively with matters of moral and constitutional principle. The book bridges the worlds of constitutional theory, political theory, and constitutional practice. It illuminates the Supreme Court's decision of actual cases and its development of well-known doctrines. It is a doctrinal study that yields jurisprudential insights and a contribution to constitutional theory that is closely tied to actual judicial practice.

57 citations

Journal ArticleDOI
TL;DR: In this paper, the authors argue that the two leading notions of autonomy, positive and negative liberty, are overly simple and flawed, and argue that autonomy-based First Amendment theory should recognize two alternative conceptions: descriptive autonomy, which considers the impact of external causal factors on individual liberty, and ascriptive autonomy which represents each person's sovereignty over her moral choices.
Abstract: A number of commentators have identified autonomy as a central value of the First Amendment. In this essay, Professor Fallon argues that the two leading conceptions of autonomy, positive and negative liberty, are overly simple and flawed. He argues that autonomy-based First Amendment theory should recognize two alternative conceptions: descriptive autonomy, which considers the impact of external causal factors on individual liberty, and ascriptive autonomy, which represents each person's sovereignty over her moral choices. Professor Fallon introduces a four-part framework to gauge the extent to which a person is descriptively autonomous. He notes that ascriptive autonomy is less analytically neat, but argues that the concept is also important to First Amendment jurisprudence because it "reflects an aspect of human self-understanding that descriptive autonomy fails to capture." Professor Fallon then explores the moral and policy issues that arise from distinguishing descriptive from ascriptive autonomy, concluding that both notions of autonomy are fundamental to the First Amendment. He warns, however, that because descriptive and ascriptive autonomy often pull in opposite directions, autonomy-based arguments frequently complicate rather than simplify First Amendment debates.

38 citations

Journal Article
TL;DR: The authors argued that the strict scrutiny test is best understood as mandating a proportionality inquiry and that when challenged regulations would at best reduce risks or incidences of harm, rather than extirpate them completely, courts applying strict scrutiny must ask whether the benefits justify the costs in light of regulatory alternatives that would trench less deeply on constitutional rights but also be less effective in promoting their goals.
Abstract: The history and practice of strict judicial scrutiny are widely misunderstood. Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. It did not clearly originate in race discrimination cases, as some have suggested, nor in free speech jurisprudence, as Justice Harlan once claimed. Although strict scrutiny is widely assumed to be \"strict in theory, but fatal in fact,\" judicial practice in applying it has been complex, even conflicted. There are at least three identifiable versions of strict scrutiny, all subsumed under the same label. The result is uncertainty and sometimes confusion about which version the U.S. Supreme Court will apply in which cases. Some of the confusion arises from the strict scrutiny test's vague and ambiguous terms, which leave critical questions unanswered. Seeking answers to those questions through normative rather than doctrinal inquiry, this Article argues that the strict scrutiny test is best understood as mandating a proportionality inquiry. At least when challenged regulations would at best reduce risks or incidences of harm, rather than extirpate them completely, courts applying strict scrutiny must ask whether the benefits justify the costs in light of regulatory alternatives that would trench less deeply on constitutional rights but also be less effective in promoting their goals.

36 citations


Cited by
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TL;DR: McQueen et al. as mentioned in this paper presented a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby.
Abstract: Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

1,813 citations

01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations

Journal ArticleDOI
TL;DR: Since the authors are approaching these topics from the standpoint of social scientists, their recommendations for legislative action which surely must be based on properly ethical considerations, not merely sociological ones seem devoid of any satisfactory rational support.
Abstract: Conclusions and Recommendations, are particularly interesting in view of the controversies aroused by the Warnock Report. Many of the recommendations contained here are similar to Warnock's (for example, concerning the legitimacy of AID children, the need for a licensing authority to supervise the work ofAID and IVF centres, etc), but others are at odds with the corresponding Warnock recommendations. In general, the authors place higher value on the family as an institution than did the Warnock Committee and display a much livelier awareness of the possible social dangers of the new techniques. One weakness of the book is that since its authors are approaching these topics from the standpoint of social scientists, their recommendations for legislative action which surely must be based on properly ethical considerations, not merely sociological ones seem devoid of any satisfactory rational support. For example, they concede that experimentation on human embryos is an objectionable practice, since 'the material acting as the subject of the experimentation is a human being at the beginning of its individual development' (p 178); but the practical recommendation which they make concerning this practice is disappointingly feeble:

1,025 citations

Posted Content
TL;DR: The Implicit Association Test (IAT) as mentioned in this paper has been used to find that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups, which poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so.
Abstract: Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of debiasing through law.

227 citations

01 Jan 2016
TL;DR: In this paper, the authors focus on the relation that freedom of contract (and its limitations) has with forum selection clauses, as well as whether they can be seen as abusive terms, and use the case of maritime carriage contracts under bills of lading, reviewing the regulations that affect the trade.
Abstract: The ability of the parties to conclude binding agreements, and to determine the contents of these agreements, is at the very core of our market system. They are the consequence of our liberal understanding of personhood, placing individuality and autonomy as essential elements of our personality. Despite the importance of these concepts, however, the content of freedom of contract has experienced significant changes throughout the years, as more and more limitations are imposed upon it. This new understanding rests on the idea that not all parties are the same, and that there are certain matters that should not be modified by mere agreement. Our work focuses on the relation that freedom of contract (and its limitations) has with forum selection clauses, as well as whether they can be seen as abusive terms. In order to conduct this analysis, we use the case of maritime carriage contracts under bills of lading, reviewing the regulations that affect the trade, and whether changes need to be made to accommodate our new understanding.

194 citations