Second Order Decisions in Rights Conflicts

Abstract

How should judges decide hard cases involving rights conflicts? Standard debates about this question are usually framed in jurisprudential terms. Legal positivists and critical legal theorists claim that the law “runs out” or is incomplete, requiring judges to exercise discretion, while some anti-positivists argue that the law always provides a right answer. Recently, however, some legal scholars have attempted to side-step these responses by arguing that, if (or when) there are hard cases, judges should adopt second-order decision procedures to adjudicate them. Drawing on the idea of “least cost avoidance,” familiar from tort law, a leading proposal recommends that judges apply a conflict-avoidance principle, which holds that courts should decide against the party that, ex ante, could most easily have avoided a conflict over its rights. After distinguishing various ways in which the law can be incomplete, we rehearse the case for conflict avoidance. We then argue that even in instances of legal indeterminacy or epistemic uncertainty — when the law provides no first-order reasons for selecting one outcome over another — there are several grounds for rejecting this approach to constitutional adjudication. First, despite its novelty and prima facie appeal, conflict avoidance is based on a mistaken analogy to accidents, which underestimates the epistemic and moral benefits of deciding hard cases. Second, conflict avoidance privileges private ordering over democratic decision-making, in ways that risk entrenchment of social hierarchies and trivialization of expressive or deontic rights. Third, the case for conflict avoidance fails to account for alternative second-order decision procedures and the normative justifications for them. Lastly, we caution that the use of hypothetical examples and toy cases can mislead by suggesting that indeterminacy is pervasive in the legal system. But many purportedly “hard” cases may turn out to involve reasonable disagreements, rather than more intractable forms of legal incompleteness. In those cases, judges may be able to decide based on first-order reasons. 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.

Keywords: second order decisions, hard cases, legal indeterminacy, incompleteness, conflict avoidance