BY ADINA LEVINE
Professor Richard Fallon celebrated his assumption of the Ralph S. Tyler, Jr. Professorship of Constitutional Law on Monday, February 7th. Hallmarking the occasion, Fallon delivered a lecture about “Judicially Manageable Standards” in Austin East to a host of students and faculty members.
“I was just delighted that this was the chair that I got,” began Fallon, “A chair that has been previously held by two wonderful people for whom I have enormous admiration, John Ely and Larry Tribe.”
Professor Laurence Tribe held the Tyler Chair until last year when he was designated as the Carl M. Loeb University Professor, the “highest academic honor that the university can give to anyone,” according to Fallon. Because of the way in which assignment of Chairs is handled, when Tribe gave up his chair, it became available to another Harvard Law faculty member. Through a combination of seniority and merits, Fallon was assigned to the Chair.
“[Professor Fallon is] a wonderful person to get the Tyler chair because of his extraordinary distinction as a constitutional law scholar and teacher,” asserted Dean Kagan. “He’s also a remarkably fine person who over the years has given of himself to many hundreds of law students.”
The conferring of a chair does not entail an increase in salary nor any other “tangible benefit” according to Kagan.
“It’s just a way of honoring someone,” commented Kagan. “Seniority has something to do with the allocation of chairs; so too does subject matter, [since] some chairs are only for a professor who teaches in a particular area, like constitutional law; so too does excellence in scholarship and teaching.”
Fallon has been teaching at Harvard Law for 23 years, since 1982 and has been a Professor of Law since 1987. This year, he taught Constitutional Law in the fall and throughout the year has been co-teaching with Heather Gerken a Public Law Workshop. He regularly teaches a course on federal courts, that he “just happened not to be teaching this year.”
“Constitutional law has been at the center of my professional life,” asserted Fallon. “Apart from giving the lecture, [Monday] was a very good day, everyone was very kind.”Fallon chose to speak about Judicially Manageable standards because that is the topic that he is in the midst of working on.
“It’s what I’m working on right now,” explained Fallon about his choice in the topic. “It seems to me that it’s the job of people who are lucky enough to be tenured professors to keep on doing scholarship, and it just seemed fitting that if I was getting a chair, to talk about what I’m working on.”
Fallon expects that his article about Judicially Manageable standards will be available for publication either late this year or early next year.
“I’m excited about the topic,” asserted Fallon. “The notion of judicially manageable standards is a phrase that seems very technical within the technical doctrine of the political question, but it actually opens up a pretty big window from which to look at constitutional law from a different perspective. Sometimes I like my topics more, sometimes I like them less. This is one that I’m pretty excited about.”
In discussing the history of judicially manageable standards, Fallon drew on relatively recent Supreme Court case Vieth v. Jubel Irer for guidance. “All of the justices agreed that where there is no judicially manageable standard, it is the function of the judges to try to create judicially manageable standard,” Fallon stated. “When courts are undertaking the tasks of judicially manageable standards, the court clearly assumes that when the court is crafting the standard, there has to be a reasonable fit between what the standard says or means, and what the underlying constitutional says or means – but the fit doesn’t have to be perfect.”
The court then applies three criteria for determining a judicially manageable standard, according to Fallon. The first criteria is that the standard needs to direct the court to ask an intelligible, answerable question.
“In modern times, the debate is over whether tests that ask the court to inquire into the intent of the legislature are judicially unmanageable,” explained Fallon. “The legislature as a whole has no intent. So when the court is inquiring into the intent of the legislature, it is asking a question that cannot be answered and will fail the requirement of intelligibility.”
The second criteria Fallon identified as a “context specific requirement of consistently, predictability, public acceptability.”
“If you ask people to determine whether they consent to a search based on totality of the circumstances, you will get pretty consistent decision,” Fallon observed. “In the context of political gerrymandering, the court expects there to be more disagreement. The court has to make guess about whether a vague standard will lead to consistent results in some contexts and not in others.” The final criteria for determining judicially manageable standards is, according to Fallon, an “all things considered” analysis.
“The Court starts with some analytic content: it must be a question capable of being answered,” said Fallon. “Then there’s a demand for some predictability and consistently. But at the end of the day it turns on whether is it worth it. At the end of the day, the Court is making a highly open-ended balancing standard, producing what I’m going to call an under-enforcement of the constitution.”
Fallon’s final point in discussing Judicially Manageable Standards is that there is some gap between the constitutional rights and constitutional enforcement.
“There is permissible disparity between the constitutional meaning on the one hand and constitutional doctrine on the other,” asserted Fallon. “I think we often think of courts as truth. But really Constitutional Law is a series of judgments about what a court can sensibly manage. Courts are deciding for themselves what, with all things considered is desirable for them to do. The doctrine of Judicially Manageable Standard beckons us to recognize that courts are not simply telling us what truth the constitution means.”
Fallon’s lecture was met by applause from an audience consisting of his students and his peers. Fallon was pleased to see that a number of his former students, who include Dean Kagan, were present for the lecture.
“I really just love teaching,” said Fallon. “I know it sounds really corny to say, but I really love my students. That’s the thing that makes it all worthwhile, that makes it fun to come to work every day.”