Rights, rules, and the structure of constitutional adjudication: A response to Professor Fallon

Constitutional doctrine is typically rule-dependent. A viable constitutiona l challenge typically hinges upon the existence of a discriminatory, overbr oad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Professor 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 cla imants, but are rather repealing or amending invalid riles. In a Commentary in this issue, Professor Fallen now puts forward a different model of cons titutional adjudication, equally consistent with rule-dependence.(1) Fallen proposes that a reviewing court should overturn the application of a const itutionally invalid rule to a given claimant if that rule contains MO valid severable subrule that covers the claimant; and he criticizes Adler's mode l on various counts. In this Response, Adler replies to Fallen's criticisms and, more generally, attempts to demonstrate that the Fallen Model is not supported by a variety of considerations that might seem to favor it. The F allen Model is a better account of rule-dependence than the Adler Model onl y if the Fallen Model better implements constitutional norms, and Professor Fallen has not shown or even tried to shorer that if does.