Document Type

Article

Publication Date

2000

Keywords

rights, adjudication, First Amendment, morality

Abstract

Constitutional doctrine is typically rule-dependent. A viable constitutional challenge typically hinges upon the existence of a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Prof. Adler proposed one model of constitutional adjudication that tries to make sense of rule-dependence. He argued that reviewing courts are not vindicating the personal rights of claimants, but rather are repealing or amending invalid rules. IN a Commentary in this issue, Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. Fallon proposes that a reviewing court should overturn the application of a constitutionally invalid rule to a given claimant if that rule contains no valid severable subrule that covers the claimant; and he criticizes Adler’s model on various counts. In this Response, Adler replies to Fallon's criticisms and, more generally, attempts to demonstrate that the Fallon Model is not supported by a variety of considerations that might seem to favor it. The Fallon Model is a better account of rule-dependence than the Adler Model only if the Fallon Model better implements constitutional norms, and Professor Fallon has not shown or even tried to show that it does.

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