It is a Legal Theory Blog tradition for me to express my thanks and gratitude on Thanksgiving Day. This year my choice was especially clear. When Fred Schauer passed away earlier this year, the outpouring of grief and gratitude from Fred's colleagues, students, and friends was overwhelming.
My relationship with Fred goes back almost 40 years to the time that I was a brand new law professor and had just published my first article, On the Indeterminacy Crisis: Critiquing Critcal Dogma. As one did, I sent reprints out. It was a real thrill to receive handwritten letters from Ronald Dworkin, Charles Fried (then Solicitor General), and many others.
One of the letters came from Fred Schauer, who was then at the University of Michigan School of Law. By the time I had gotten Fred's letter, I was a bit full of myself. The article had gotten quite a lot of attention and praise. I vividly remember Duncan Kennedy calling me to complain about the paper's influence on perceptions of the critical legal studies movement. Fred's letter was unique, reflecting his fundamental goodness, honesty, and generosity. Fred was broadly sympathetic to my argument against the indeterminacy thesis, which at the time was seen as a central claim by critical scholars. But Fred's letter was also critical and for that reason helpful in a way that stood out from the rest of the feedback that I received. When Fred commented that my use of a quote from Wittgenstein was "philosophically pretentious," the criticism stung but it also reflected Fred's real interest in helping a younger scholar find his way.
Over the years, I attended many conferences and events at which Fred was present. Conversations with Fred were always a joy. And I always learned from Fred--especially when we disagreed. Recently, Fred and I were colleagues at the University of Virginia. It was always rewarding to participate in workshops when Fred was present; his questions were always deep and constructive. Every conversation with Fred about legal theory left a mark: he made me a better scholar and thinker in more ways than I can count.
Fred left behind a prodigious body of work. He has been cited many many thousands of times. Because he worked on the fundamental problems of legal theory, reading Fred will benefit every legal thinker, even if you are not yourself a theorist. Here are a few books, I especially recommend:
Thinking Like a Lawyer: A New Introduction to Legal Reasoning This book is aimed at law students, but I think legal scholars will benefit from it in profound ways.
The Proof: Uses of Evidence in Law, Politics, and Everything Else Of special interest to evidence scholars, but every legal scholar will learn from Fred's deep thinking about the nature of evidence. This was Fred's last published book and one of his greatest accomplishments.
Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life In my opinion, Fred's most important book. A classic. If you only read one book by Fred, this should be it.
Free Speech: A Philosophical Enquiry Out of print. I read this book as a law student, when writing a paper on Habermas's theory of communicative action and the freedom of expression. Fred's book profoundly influenced the way that I approach normative legal theory. Every article that I write reflects the lessons I learned from this book by Fred.
Thank you, Fred Schauer. I miss you. I owe you. You will always be with me.
