Justice Elena Kagan on the Late, Great Prof. Richard Fallon

From the Harvard Law Review (thanks to Prof. Richard Re for the pointer):

Forty years ago, I walked into Dick Fallon’s Fed Courts class in the now-demolished wing of Pound Hall. Dick was young—only 33. It was his third year teaching at Harvard Law School. It was his third time teaching Fed Courts. But even then, more students than he could possibly teach sought out his class because they had heard it would make them better thinkers and lawyers. I took many wonderful classes and had many wonderful teachers at HLS. But if forced to pick just one—as the most rigorous, most challenging, and most exciting—I’d pick Fallon on Fed Courts.

I’m not sure I’d have guessed that on the first day. Dick didn’t have an enormous classroom presence. He certainly wasn’t a Kingsfield-type. He was as unfailingly kind—even gentle—inside the classroom as he was outside of it.

And yet he had the highest of standards—for both his students and the law. He treated every issue in Fed Courts as a kind of mystery: What explained how a given doctrine had developed? What was its purpose, and how did it work? Did it accomplish its objectives, and were its objectives worth accomplishing at all? Every 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 sooner or later came up short. And it was the most thrilling experience I ever had in a classroom.

In the middle of that semester, Dick asked me and Carol Steiker (also one of Dick’s later colleagues at HLS) to do some out-of-class work for him. He asked if we would read an article he was working on and come talk with him about it—to tell him what we thought of it and how he could improve it. That article was published the next year as A Constructivist Coherence Theory of Constitutional Interpretation. The worst thing about it was its title. The best thing about it was everything else. I very much doubt I had a single useful thing to say about how to make that article better. The benefit of the experience was 100% 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 talks? It blew me away. And it made me think that maybe I wanted to, and maybe I could, become a legal academic myself.

Which, I’m quite sure, was the whole point of Dick’s proposal. In the months since his death, I’ve heard so many of his former students talk about the influence he had on their careers. How he gave them, as he gave me, the confidence to pursue some path. Or helped them to develop an idea. Or read multiple drafts of their first article. Or pushed hard for them to get hired in some job. He was not just a great classroom teacher but a great mentor. He got to know lots of students. He thought their ideas were worth spending time on, and he engaged with them as peers. The legal world is full of HLS alumni grateful to Dick Fallon. I’m certainly one.

When I returned to Harvard years later as a professor, I realized that Dick had a gift for personal relations of every sort. He was the best of colleagues; he was the best of friends. From David Shapiro and Lloyd Weinreb in a prior generation to Daphna Renan and Ben Eidelson in a much later one. I often heard from John Manning and Jack Goldsmith about the joys of working closely with Dick. But the person I most think of as in perfect synergy with him was Dan Meltzer. In all its long history, I doubt HLS has ever had such a partnership. I think what Dan would have said 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, was one of the prime joys of his academic life.

As much as anyone who has ever graced HLS, Dick loved doing scholarship. What he wrote was at times not very fashionable or trendy. In 1986, for example, a person had to go against the grain (and by more than a bit) to write something like A Constructivist Coherence Theory of Constitutional Interpretation. But Dick had a strong sense of his own identity as a scholar—what he cared about, what he was best suited to, and what he thought was valuable. And as the years went by, Dick’s scholarship came to be seen by pretty much everyone as of transcendent quality and lasting importance.

Here are the three things I love most about it:

First, it takes law—and particularly the enterprise of judging—deeply seriously. Dick didn’t think that doing law was mechanical. He didn’t believe in the “just call balls and strikes” view of the judge’s role. He thought that values of various kinds did, had to, and indeed should enter the picture. But for all that, Dick believed that law had a there there—that it wasn’t just politics or personal preferences by another name. And Dick thought that even when its determinacy ran out, law could be done with analytic rigor, adherence to principle, and fair-mindedness. Law could be done, that is, in much the way Dick wrote his articles. It’s at once a realistic and an attractive vision of judging.

Second, and relatedly, Dick took great pains to get everything right. There’s no cutting corners in his scholarship. There’s no gliding over or eliding the toughest issues. Dick was a grappler. And he didn’t stop working on an article until he had tried, to the best of his ability, to nail everything down. As a result, Dick’s work has a deep integrity. His articles weren’t essentially finished before they were started. Every line in them was the product of meticulous thought.

And third, Dick always showed respect for those who disagreed. He cast the views of his intellectual adversaries in their strongest form and their best light (before, that is, going on to shred them). The best example is his work on originalism. Dick wasn’t a fan of the theory. But his work was scrupulously intent on giving its adherents their due. It’s a good lesson in these contentious times. Dick didn’t pull his punches. But he was never less than civil—indeed, he was 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 fed courts exam, called Camreta v. Greene. It came out late in the Term, and Dick wrote me a letter about it that summer. The letter included some praise. And it included some trenchant criticism. 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 relate that line only to convey that no note I’ve received in my fifteen-plus years on the bench has made me more proud. That’s how much Dick’s opinion meant and means to me, I think rightly. It was a gift that Dick Fallon was my teacher, both forty years ago and ever since.