Second-Order Decisions in Rights Conflicts

*James D. Nelson is a Vinson & Elkins Professor at the University of Houston Law Center. Micah Schwartzman is a Hardy Cross Dillard Professor at the University of Virginia School of Law. For helpful comments and discussion, we thank Nicholas Almendares, Charles Barzun, Michael Gilbert, Mitu Gulati, John Harrison, Deborah Hellman, Lewis Kornhauser, Christopher Leveroni, Fred Schauer, Richard Schragger, Larry Solum, Aaron Tang, and participants at the conference on “Judging Hard Cases” sponsored by the Karsh Center for Law and Democracy and the Center for Public Law and Political Economy at the University of Virginia School of Law.Show More

Introduction

How should judges decide hard cases involving rights conflicts? Standard debates about how to answer this question are usually framed in jurisprudential terms. Legal positivists claim that the law is sufficiently “open textured” that it will not provide judges with guidance in some range of cases.¹ 1.See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994).Show More The law is said to “run out” or to be incomplete.² 2.Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”).Show More In such cases, legal sources—constitutions, statutes, executive orders, agency regulations, and so on—do not provide reasons that determine the legal question at issue. When the law runs out in this way, judges have no choice but to exercise discretion. They cannot reason within the limits of the law. They must reach beyond it by relying on policy considerations or judgments drawn from political morality. How often this happens is a matter of dispute among legal positivists and theorists who take a more critical stance toward the law.³ 3.See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases).Show More But whether the law runs out only in some cases, or, more radically, in all of them, judges will face the question of how to adjudicate conflicts when they lack sufficient legal reasons.

The traditional competitor to both positivist and critical legal theories has been an anti-positivist view that rejects the possibility of judicial discretion in hard cases. Most famously, Ronald Dworkin defended a single-right-answer thesis, according to which every conflict of rights has a unique or determinate outcome.⁴ 4.See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978).Show More That is because, on his view, the law never (or almost never) runs out. At least in complex and well-developed legal systems, there are always legal sources, as well as moral values and principles embedded within the law, that provide judges with reasons to favor one outcome over another.⁵ 5.See Dworkin, Taking Rights Seriously, supra note 4, at 286.Show More Judges never have to reach beyond the law to adjudicate rights conflicts. The law, in this view, is a complete system. It will contain sufficient reasons for making legal decisions, and the job of judges, however difficult, is to discern them.

Attempting to sidestep this long-standing debate over whether—or to what extent—there are hard cases, some legal scholars have recently taken up the question of how to decide such cases if, or when, they do indeed exist. In a leading account offered by Charles Barzun and Michael Gilbert, when ordinary considerations of law and justice leave judges uncertain about how to adjudicate rights disputes, those judges should adopt a second-order decision-making procedure to determine the outcome.⁶ 6.On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing].Show More More specifically, and by analogy to the idea of “least cost avoidance” familiar from the economic analysis of private law,⁷ 7.See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”).Show More they argue for a conflict-avoidance principle, which holds that “courts should decide hard cases against the party who could have more easily avoided the constitutional conflict in the first place.”⁸ 8.Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted).Show More The promise of this principle is that, by following it, judges would resolve hard cases in a way that encourages the parties to avoid rights conflicts. If successful, this decision-making strategy would, in turn, reduce the incidence of hard cases. Judges would face fewer conflicts in which they are uncertain about how to apply the relevant first-order considerations of law and political morality.

The conflict-avoidance approach to adjudicating hard cases is both novel and ingenious. To our knowledge, and perhaps surprisingly, no one has previously proposed resolving legal indeterminacies by aiming to reduce cases that produce such indeterminacies. Of course, others have argued that their theories of adjudication would ameliorate trenchant political, social, and cultural controversies, including those involving constitutional rights.⁹ 9.See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality).Show More But Barzun and Gilbert’s proposal is distinctive in that it only applies in hard cases. Theirs is a “meta-principle”¹⁰ 10.Barzun & Gilbert, supra note 8, at 7 n.18.Show More of adjudication, rather than a general approach applicable to all cases involving rights conflicts. In conflict avoidance, hard cases are resolved recursively for the purpose of preventing more hard cases.¹¹ 11.In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views.Show More

Despite its originality and prima facie appeal, we argue that there are several reasons to avoid adoption of the conflict-avoidance principle. The argument for that principle draws on an analogy to accidents in tort law. Both accidents and hard cases involve significant costs. Just as car accidents lead to physical injuries—as well as to the administrative costs of insurance, adjudication, and compensation—hard cases produce costs for the parties to litigation and for the courts that decide them. But this analogy is one-sided and potentially misleading. Whereas accidents only produce costs, hard cases may generate important epistemic and moral benefits by serving as vehicles for deliberation, social contestation, and political or legal reform. Thinking of hard cases as if they were accidents also contributes to a pessimistic conception of rights adjudication, one with a neoliberal or libertarian tilt that favors private ordering over public and democratic decision-making.

The case for conflict avoidance is also incomplete. Courts faced with hard cases have available to them a variety of second-order decision procedures, including deference to other (or future) decision-makers, defaults favoring political values of liberty or equality, interest balancing (including theories of proportionality review and harm avoidance), and the use of lotteries or other chance devices. Selecting among these second-order strategies requires justification. If judges adopt conflict avoidance, they must have reasons to reject the others. Surveying alternatives can help clarify the values that support cost-avoidance as well as those that recommend against it.

Second-order decision-making strategies may have an important place in deciding hard cases. But in adopting them, we urge caution. The use of hypothetical examples as toy cases—to demonstrate how a theory works, rather than to recommend a particular application—may suggest that hard cases are far more prevalent in the legal system than in fact they are. Many cases that are described as “hard” may turn out to involve reasonable disagreements, rather than more intractable forms of legal incompleteness, such as indeterminacy or radical uncertainty about what the law or justice requires. And in those cases, judges may be able to proceed based on first-order reasons, without having to ascend to second-order theories of adjudication. Indeed, facing the prospect of applying second-order procedures may lead judges to conclude that law and morality do, after all, provide the right answers.

1.  See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994). ↑
2.  Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”). ↑
3.  See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases). ↑
4.  See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978). ↑
5.  See Dworkin, Taking Rights Seriously, supra note 4, at 286. ↑
6.  On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing]. ↑
7.  See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”). ↑
8.  Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted). ↑
9.  See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality). ↑
10.  Barzun & Gilbert, supra note 8, at 7 n.18. ↑

11.  In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views. ↑