Home Slideshow

First-, Second-, and Third-Order Reasons in Legal Institutions, with First Amendment Examples

Introduction

Suppose a group wants to hold a demonstration in a public park. Would the world be better off if they did? First-order reasons go into answering that question. How much would the demonstration disrupt the park’s use for relaxation and recreation? Would the demonstration attract supporters and opponents who are likely to cause violence either independently or because they are at each other’s throats? Could the demonstrators get their message across in some other way?

We can proliferate questions like these—and worry about whether some questions ought to be irrelevant. Should we take into account the importance of the demonstrators’ purposes? (Are they demonstrating to show support for the Flying Spaghetti Monster [look it up] or against the nation’s immigration policies?) Should we take into account the fact, if it is one, that some people in society are offended by simply knowing that other people have the demonstrators’ views?

At the end of the day, we will decide whether, all things considered, the world would be better off or worse off were the demonstration to occur.

Who, though, is the “we” of whom I speak? One possibility is that the “we” is you and me, ordinary people who read about the proposed demonstration in their social media feeds. This Essay deals with an institutional “we,” some body charged with making a decision about allowing the demonstration to go forward or not. And not merely “some” body, but a particular one. Among the candidate institutions for making the “is the world better off?” decision are these: the head of the city’s parks department, the city’s police chief, the city council, and a court. And not merely “a” court, but a supreme court.

Most of the Essay treats the police chief, the city council, and the other candidate institutions as frontline actors whose initial decisions are subject to control by an ultimate decision-maker, the supreme court. “Control” means that the ultimate decision-maker (“the UDM”)—for expository purposes, the supreme court—can get the initial decision-maker to comply with the UDM’s judgment about what makes the world better off according to its criteria for “makes the world better off.”1 1.The criteria could be consequentialist or deontological. Many of the examples I give in this Essay are consequentialist in form. That is because I am basically a consequentialist and because exposition of the argument is easier if we give “makes the world better off” a consequentialist reading. But, analytically, swapping in deontological formulations would not affect the analysis. For additional discussion of what “get to comply” means, see infra Part II.Show More

It is important for my purposes that the “is the world better off?” judgment is not a free-floating or “God’s eye” normative judgment. Rather, it is an institutional judgment: In the view of the ultimate decision-maker, would the world be better off with or without the demonstration?

Were the UDM to make that judgment—were it to be both the frontline and the ultimate decision-maker—it would make an all-things-considered (“ATC”) assessment of first-order reasons. In many—probably pretty much all—real-world settings, though, the UDM reviews decisions made by a frontline decision-maker.2 2.See Mark Tushnet, Who Am I to Judge?: Judicial Craft Versus Constitutional Theory 84 (2025).Show More And that institutional feature introduces the need for second-order reasons.3 3.The term “second-order reasons” has been used in other ways in scholarship related roughly to this Essay’s topic. See, e.g., James D. Nelson & Micah Schwartzman, Second-Order Decisions in Rights Conflicts, 109 Va. L. Rev. 1095, 1105 (2023), which, as I read it, uses the term to identify reasons that improve “God’s eye” normative judgments independent of any institutional locus. See also infra note 66 (discussing my prior use of the term).Show More Second-order reasons are typically rules that screen out from the frontline decision-maker’s consideration first-order reasons that are rationally relevant to an all-things-considered “God’s eye” (that is, noninstitutional) assessment.4 4.See Joseph Raz, Practical Reason and Norms 39–40 (Oxford Univ. Press 1999) (1975); see also infra note 17 for a brief discussion of the similarity to and difference from Joseph Raz’s argument that rules issued by “practical authorities” exclude relevant considerations from a decision-maker’s purview.Show More

The next Part of this Essay asks, “Why on earth would you try to prevent a decision-maker from taking a relevant first-order reason into account?” The answer is that doing so in the right way increases the number of occasions on which the world is made better off by the ultimate decision-maker’s lights. The analysis is almost entirely unoriginal, though perhaps I emphasize some things more than other scholars have.5 5.I am reasonably sure that everything I say in Part I is anticipated in Fred Schauer’s work, beginning with Frederick Schauer, Free Speech: A Philosophical Enquiry 42–43 (1982). See alsoAdrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small 159–60 (2007) (explaining, through Chevron, the benefit of second-order interpretation), and more obscurely, Giulio Itzcovich, On the Legal Enforcement of Values. The Importance of the Institutional Context, in The Enforcement of EU Law and Values: Ensuring Member States’ Compliance 28, 32–36 (András Jakab & Dimitry Kochenov eds., 2017) (describing normative theories of legal interpretation).Show More

Part II turns to what I believe to be unexplored territory.6 6.Though I might well have overlooked relevant scholarship.Show More Suppose that the city’s police chief takes direction from the city council, which has enacted an ordinance prescribing conditions for granting permits to use the park for demonstrations. Complying with that ordinance, the police chief denies a permit. Litigation ensues, and when the smoke clears, the supreme court tells the police chief to issue the permit, which she does. That action does not in itself wipe the ordinance off the books.7 7.In terms used in some jurisdictions, the supreme court disapplies the ordinance but does not invalidate it (perhaps because applying the ordinance in other circumstances would make the world better off as the supreme court sees things). See Adam Perry, Why Constitutional Conventions Aren’t Laws (Hint: It’s Not Why You Think) (Feb. 27, 2018), https://adamdper‌ry.com/2018/02/27/why-constitutional-conventions-arent-laws-hint-its-not-why-you-think/ [https://perma.cc/T7FT-6YN2].Show More The supreme court might think, though, that the world would be a better place if the ordinance had not been enacted in the first place (so that the police chief would not have had the authority to prevent the demonstration), and it believes that the reasons the city council had for enacting it were rooted in the incentives its members had. The supreme court might try to develop what I call third-order reasons to take those incentives (and thereby those reasons) into account when generating its second-order rules.8 8.See infra Part II.Show More To bring the analysis to ground, I narrow the scope of the inquiry: legislators might act because of public-choice-type reasons (self-interested voters mobilize differentially to support or oppose legislators whose actions advance the voters’ private ends) or because of republican, public-interest reasons.9 9.See Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law 100–03 (2015).Show More Third-order reasons might be deployed to improve the operation of a public-choice-based legislative process.

I conclude by briefly pulling together some strands of the Essay’s argument that suggest—only suggest, not establish—that the ideal of the rule of law to which Schauer and many others are committed is unachievable in the real world of complex institutions and bodies of law.

  1.  The criteria could be consequentialist or deontological. Many of the examples I give in this Essay are consequentialist in form. That is because I am basically a consequentialist and because exposition of the argument is easier if we give “makes the world better off” a consequentialist reading. But, analytically, swapping in deontological formulations would not affect the analysis. For additional discussion of what “get to comply” means, see infra Part II. ↑
  2.  See Mark Tushnet, Who Am I to Judge?: Judicial Craft Versus Constitutional Theory 84 (2025). ↑
  3.  The term “second-order reasons” has been used in other ways in scholarship related roughly to this Essay’s topic. See, e.g., James D. Nelson & Micah Schwartzman, Second-Order Decisions in Rights Conflicts, 109 Va. L. Rev. 1095, 1105 (2023), which, as I read it, uses the term to identify reasons that improve “God’s eye” normative judgments independent of any institutional locus. See also infra note 66 (discussing my prior use of the term). ↑
  4.  See Joseph Raz, Practical Reason and Norms 39–40 (Oxford Univ. Press 1999) (1975); see also infra note 17 for a brief discussion of the similarity to and difference from Joseph Raz’s argument that rules issued by “practical authorities” exclude relevant considerations from a decision-maker’s purview. ↑
  5.  I am reasonably sure that everything I say in Part I is anticipated in Fred Schauer’s work, beginning with Frederick Schauer, Free Speech: A Philosophical Enquiry 42–43
    (1982).

    See also Adrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small

    159–60 (2007)

    (explaining, through Chevron, the benefit of second-order interpretation), and more obscurely, Giulio Itzcovich, On the Legal Enforcement of Values. The Importance of the Institutional Context, in The Enforcement of EU Law and Values: Ensuring Member States’ Compliance 28, 32–36 (András Jakab & Dimitry Kochenov eds., 2017) (describing normative theories of legal interpretation). ↑

  6.  Though I might well have overlooked relevant scholarship. ↑
  7.  In terms used in some jurisdictions, the supreme court disapplies the ordinance but does not invalidate it (perhaps because applying the ordinance in other circumstances would make the world better off as the supreme court sees things). See Adam Perry, Why Constitutional Conventions Aren’t Laws (Hint: It’s Not Why You Think) (Feb. 27, 2018), https://adamdper‌ry.com/2018/02/27/why-constitutional-conventions-arent-laws-hint-its-not-why-you-think/ [https://perma.cc/T7FT-6YN2]. ↑
  8.  See infra Part II. ↑

  9.  See Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law 100–03 (2015). ↑

The Shaping of Information Flow in Law and Life

Introduction

Fred Schauer showed how the law takes a messy, probabilistic world and uses rules to draw bright lines through it: liable or not, knowing or ignorant, guilty or innocent.1 1.Of course, the law sometimes uses standards or probabilistic thresholds (reasonableness tests, burdens of proof), but the ultimate result is a categorical determination.Show More Such neat categorical boxes are a feature, not a bug, for the law. They serve two critical purposes: (1) they determine an outcome, and (2) they fulfill the law’s need for predictability and administrability.2 2.See Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 95, 137 (1991); Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 35–37 (2009); Frederick Schauer, Formalism, 97 Yale L.J. 509, 539 (1988); see also Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557, 611 (1992) (underscoring the need for legal predictability).Show More

From an economic perspective, though, information comes in shades of gray, not black and white. Indeed, sometimes those grays include dots and waves and not merely tones, such as when potential states of the world are poorly defined. Beliefs update by degree, and uncertainties in the law are rarely resolved to one or zero before a decision must be made. Finally, information may be written in invisible ink, as when ignorance hits and individuals do not even recognize the existence of some states of the world.

When law imposes categorical boundaries on this amorphous, ill-defined reality, it does more than merely regulate information asymmetries. It creates new strategic landscapes, where the boundaries themselves create games among strategic players. Hold people liable for what they know, and they might choose not to learn. Punish lies but not misleading truths, and quasi-truths will flourish. When some reputations get protected but others sullied, collective identities become both a valuable resource and a significant vulnerability.

This Essay explores three conceptual domains, which lie well outside of traditional legal scholarship. Nonetheless, each of the three has strong implications for the law. Those domains are information asceticism, the strategic choice not to learn; paltering, misleading without lying; and reputational externalities, spillovers—positive or negative—from associations. In each case, we show how and where the law draws lines. We then use simple economic models to illustrate the incentives that follow. Schauer’s insights about legal categorization embrace the economic logic of uncertainty, generating predictable strategic responses that often reshape but rarely eliminate the asymmetries that underlie them.

  1.  Of course, the law sometimes uses standards or probabilistic thresholds (reasonableness tests, burdens of proof), but the ultimate result is a categorical determination. ↑

  2.  See Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 95, 137 (1991); Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 35–37 (2009); Frederick Schauer, Formalism, 97 Yale L.J. 509, 539 (1988); see also Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557, 611 (1992) (underscoring the need for legal predictability). ↑

Foreword to In Tribute: Professor Frederick Schauer

I am delighted to introduce this special issue of the Virginia Law Review Online, which celebrates the life and work of my friend, mentor, and colleague, the late Fred Schauer. The essays that follow were written for a symposium entitled “Rules and Reasons: A Conference for Fred Schauer,” held here at the University of Virginia in September 2025 to honor Fred and mark the one-year anniversary of his passing, on September 1, 2024.

As a result, this collection is something beyond a regular law review issue, or even a regular festschrift. It is a memorial, a tribute, and the product of a gathering of a worldwide community. The scholars who assembled in September 2025 were a very distinguished group, as you will see as you read some of their work. Nevertheless, the most important distinction they all shared was that Fred mattered to them, and they mattered to Fred. The conference, and these essays, were created in Fred’s memory, but they also attest to his enormous impact and his enduring legacy across multiple areas of the law.

To give a small sense of that legacy, let me describe Fred by the numbers. Fred wrote more than 300 works, including 14 books, which he authored, edited, or co-edited. (And here, I must digress for a moment. When preparing the program for the conference, the Law School communications director wanted to include a full chronological list of Fred’s works. When she asked ChatGPT to produce such a list, it kept returning answers such as, “This is going to be a really long list. Are you sure you want such a long list?” and “Here are Fred Schauer’s top titles instead.” As she told me, Fred wrote so much that he defeated ChatGPT.)

Fred’s work cut across many areas of law and many dimensions, from the most practical to the most theoretical. The essays that follow address a multitude of topics, any one of which would occupy most scholars for a lifetime. Fred turned his considerable talents to each of these fields over the course of his remarkable career and contributed significantly to each.

Fred is also one of the most-cited legal scholars ever: A 2021 study put him in the top 20 most-cited legal scholars of all time, with 11,222 citations in books and articles as of that time, ahead of the likes of Herbert Wechsler and Henry Hart.1 1.Fred R. Shapiro, The Most-Cited Legal Scholars Revisited, 88 U. Chi. L. Rev. 1595, 1602 (2021).Show More Even this astounding fact falls far short of capturing Fred’s legacy. In addition to that enormous impact on scholarship in English, Fred’s works have been translated into at least six other languages: Italian, Spanish, Portuguese, French, Chinese, and Turkish. Participants in our conference represented four countries, sixteen universities, and two courts of law—and are just a small sliver of the scholars and lawyers around the world who have been influenced by Fred and his work.

That is Fred by the numbers: he was a giant, by any measure.

But none of that captures Fred the person—Fred the teacher, mentor, and colleague. All of us who knew him have stories about how remarkable he was. Speaking for myself, I joined the Virginia Law School faculty the same year as Fred and his spouse Bobbie Spellman, in 2008. I was working on freedom of speech and was awestruck by Fred. The Law School provides new faculty members with a mentor, a senior scholar on the faculty who will read their work, give advice, and generally offer support. I asked if Fred could be my mentor because I thought that was the only chance I had of possibly getting this incredibly important person to read any of my work.

It did not take me long to realize how wrong I was. As incredibly accomplished as he was, Fred was equally unassuming, approachable, and—this is very important in a teacher and colleague—both honest and kind. In addition to being one of the most distinguished people in the legal academy, Fred was one of the most generous about reading others’ work, especially that of junior scholars. Fred not only read everything I ever sent him, but he did it in record time and always sent it back with a long email list of suggestions and comments, which ranged from the insightful to the devastating. He did the same for any scholar who asked him, junior or senior. He also took time to give junior scholars advice about new projects, potential future lines of inquiry, and that all-important but hard-to-articulate question of what kind of scholar one ought to be. He appreciated each of us for our individual talents and strengths and had a knack for engaging in those big career questions in a way that was at once knowing—about us, about the vagaries of legal academia—and supportive. (The last piece of advice Fred ever gave me was, “Don’t be a university president.”)

Fred was a first-generation law school graduate, a first-generation college graduate, and a first-generation high school graduate. Born in Newark, N.J., he attended Dartmouth College and then Harvard Law School. He started his teaching career at West Virginia University and worked at five very different institutions: WVU, the College of William & Mary, the University of Michigan, Harvard University, and finally the University of Virginia. He was a generous mentor and role model to first-generation students. Equally importantly, he was down to earth, and that is not just a nice thing to have in a colleague or teacher: for anyone who sometimes feels out of place in academia, it is vital. Where some distinguished scholars might insist upon their rank in ways quiet and loud, Fred was the opposite. He made everyone feel welcome. He felt no need to assert his status: he simply asserted his mind, which was assertion enough.

I could write as many words as Fred wrote across his lifetime and still not capture everything that was wonderful about him. I am grateful to the Virginia Law Review for publishing this collection of essays, and to all the authors who have contributed here. Many hands together paint a fuller picture of Fred Schauer the scholar, mentor, teacher, and friend.

  1.  Fred R. Shapiro, The Most-Cited Legal Scholars Revisited, 88 U. Chi. L. Rev. 1595, 1602 (2021). ↑

©Virginia Law Review Association. All rights reserved.