Harvard's Richard Fallon wins the 2019 Cooley Book Prize

Georgetown Law's Center for the Constitution Announces $50,000 Thomas M. Cooley Book Prize Winner

|The Volokh Conspiracy |

I am very pleased to announce that the Georgetown Center for the Constitution will award its second annual Thomas M. Cooley Book Prize of $50,000 to Professor Richard H. Fallon, Jr. of Harvard Law School for his book, Law and Legitimacy in the Supreme Court (Harvard University Press, 2018).

The Center will award the Cooley Prize – established last year to draw academic and public attention to a book that makes an important scholarly contribution to our understanding of the Constitution – on April 11, 2019 at Georgetown Law. The evening event will also feature the inaugural Thomas M. Cooley Judicial Lecture, to be delivered by the Honorable Joan Larsen of the U.S. Court of Appeals for the Sixth Circuit.

How a written constitution ought to be interpreted is a major focus of the Georgetown Center for the Constitution, which was founded in 2012. Professor Fallon's deeply scholarly and fair-minded book systematically examines a much-neglected topic in constitutional theory: exactly what makes a constitution legitimate—not merely in the sense that it is accepted by the general public, but that it is morally legitimate and ought to be accepted. The book then uses its answer to this question to assess how the U.S. Constitution ought to be interpreted. While respectfully and knowledgably critiquing originalism, Professor Fallon nevertheless affirms the importance of 'original public meaning' even to nonoriginalists.

Following the Cooley Judicial Lecture, a day-long invitation-only symposium will be held on April 12, 2019 featuring critical papers about Fallon's book by Georgetown Law's own Professor Lawrence Solum and Professors Gillian Metzger (law, Columbia), Scott Soames (philosophy, USC), and Keith Whittington (politics, Princeton). Professor Fallon will join these scholars and a group of constitutional law professors from area universities to discuss the issues raised by the book and papers, which will be published in a special issue of the Georgetown Journal of Law & Public Policy. I look forward to the symposium at which his many important insights will be thoroughly explored.

The Cooley Book Prize and Judicial Lecture honors the renowned legal scholar and jurist Thomas McIntyre Cooley. Cooley was a longstanding chief justice of the Michigan Supreme Court, and a professor at the University of Michigan Law School, where he also served as the dean. He authored several highly influential books, including A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union. In December 2018, the Georgetown Center for the Constitution's annual Salmon P. Chase Distinguished Lecture and Faculty Colloquium will commemorate the 150th anniversary of the publication of Cooley's Constitutional Limitations.

Last spring, the Center awarded the first Cooley Prize to professors Gary Lawson (Boston University School of Law) and Guy Seidman (IDC Herzliya—Radzyner School of Law). Their book, A Great Power of Attorney: Understanding the Fiduciary Constitution (Kansas University Press, 2017), explores what type of legal document the Constitution is and how that affects the powers it grants to government officials and the duties they owe the public.

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  1. ‘Federalist Society members help another Federalist Society member with a

    ___ scholarly citation
    ___ clerkship
    ___ speaking fee
    ___ Koch-Heritage-Bradley-Olin-funded prize or award
    ___ partisan symposium slot
    ___ faculty appointment at a third- or fourth-tier school’

    That headline template is very useful for those who wish to publicize events in right-wing academia.

    1. I never knew Harvard was a fourth-tier school. Does that mean we can stop pretending Ruth Bader Ginsberg, Elena Kagan, and Stephen Breyer are intelligent human beings?

      1. Conservative faculty members at Harvard are not hired by conservatives. They are beneficiaries of affirmative action, hired by the liberal-libertarian faculties found at strong law schools.

        Conservative faculty members at third- and fourth-rate law schools are hired by conservatives.

        Other than that, great comment!

  2. Maybe it is me, but giving out a 2019 book award in July 2019 seems wrong.

  3. Is the “invitation only” symposium policy aimed at presentation or attendance?

    If only invited persons can attend, why the snowflakery?

  4. Ironic that Cooley and Chase are the eponyms of two of the worst law schools in the US.

  5. Fallon’s . . . book systematically examines a much-neglected topic in constitutional theory: exactly what makes a constitution legitimate?not merely in the sense that it is accepted by the general public, but that it is morally legitimate and ought to be accepted. The book then uses its answer to this question to assess how the U.S. Constitution ought to be interpreted.

    Which is to say, “Cut Constitutional interpretation loose from every constraint but moral imperatives offered by whoever prevails in court.” Constitutional legitimacy ought to be better anchored than that.

    One alternative: Consider that as a matter of history, constitutions are decrees, made at pleasure, by sovereigns. If something purporting to be a constitution comes into existence otherwise, then it isn’t legitimate. It has to be a sovereign’s decree.

    That moves the moral legitimacy problem back one remove, to the sovereign. What makes a sovereign legitimate? Well, first, actual power?the constitutive power to make a government, which is, and must be, inherently unlimited, except by geographic extent. But that doesn’t answer the moral question. That answer lies in willingness of the sovereign’s subjects to adopt the sovereign’s decree as their own, and to work in concert to effect the decreed objectives. While that continues, the sovereign, the constitution, and any government which follows and honors the constitution, remain legitimate.

  6. It’s always a disappointment to me when a Randy Barnett post draws little interest?as often happens. Barnett strikes me as one of the more interesting libertarians around?and also as one of the most dangerously radical libertarians. But he is also thoughtful and original, and undoubtedly libertarian. It’s curious to see his contributions to an ostensibly libertarian blog get so little response.

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