Second Order Decisions in Rights Conflicts

39 Pages Posted: 29 Jul 2022 Last revised: 2 Nov 2022

See all articles by James David Nelson

James David Nelson

University of Houston Law Center

Micah Schwartzman

University of Virginia School of Law

Date Written: July 29, 2022


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

Suggested Citation

Nelson, James David and Schwartzman, Micah, Second Order Decisions in Rights Conflicts (July 29, 2022). Virginia Public Law and Legal Theory Research Paper No. 2022-51, U of Houston Law Center No. 2022-A-13, Virginia Law Review, Forthcoming, Available at SSRN:

James David Nelson

University of Houston Law Center ( email )

4170 Martin Luther King Blvd.
Houston, TX 77004
United States

Micah Schwartzman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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