In Memory of Frederick Schauer

Frederick Schauer died on Sunday. Fred was a mentor, casebook co-editor, and friend. He was also a towering figure in the law of free speech, jurisprudence, evidence, and much more. Interested readers can find a detailed obituary on the UVA website, as well as remembrances from his UVA colleague Larry Solum and his long-ago student (at Michigan) Brian Leiter. Here I'll add to the encomia with my own personal remembrance--emphasizing Fred's quality of mind, fundamental decency, and ultimately, his courage.

I first encountered Fred in the flesh when I was a junior faculty member at Rutgers-Camden, which was hosting a one-day conference. A panelist who was scheduled to speak was unable to make it to the conference. In those days before Zoom, we didn't have reliable technology to bring the absent speaker in via video, so it was decided that I would give an oral presentation summarizing her paper. I was not otherwise part of the program. Fred presented his own paper, which was characteristically brilliant. During the discussion portion of the panel, Fred responded to relevant points in the paper I summarized, but he also did something unexpected. He said that he wanted me to be more than a spokesperson and then discussed at some length a paper I had recently written. I was surprised Fred even knew who I was, much less that he had read my paper, which was only tangentially relevant to the panel topic--and I was enormously grateful that Fred had gone out of his way to include me in a heady conversation.

Over the years, crossing paths with Fred was always a delight. In 1998, I wrote the Harvard Law Review's annual Supreme Court Foreword and Fred wrote the annual faculty-authored Case Comment. The Review held a panel on the issue at which Fred and I both spoke. It was great fun, and it made a lasting impression. In my teaching, I frequently invoke the core point Fred made in that paper--that modern law, including but not limited to the law of free speech, often functions most effectively when it turns away from a notion, most closely associated with O.W. Holmes, Jr., in The Path of the Law, according to which legal categories do not necessarily correspond with social categories. The institutions of the real world, Fred explained, have their own particular qualities and challenges, making one-size-fits-all distinctively legal categories clumsy vehicles for achieving underlying policy aims.

More than a quarter of a century ago, Fred was already a sufficiently accomplished scholar that he merited a festschrift featuring contributions from ten distinguished scholars (or perhaps nine such scholars plus me). I focused my contribution to that wonderful day-long gathering on one small corner of Fred's work on rules and reason-giving. But I could have chosen any number of topics. For example, I might have explored Fred's improvement over Ronald Dworkin's characterization of rights as trumps; given practices of permitting sufficiently strong countervailing interests to overcome rights (if they satisfy strict scrutiny in the constitutional lexicon), Fred explained that rights are better understood as shields that provide strong but not infinite resistance to countervailing concerns. Even with an array of ten critical papers, we barely scratched the surface of Fred's work. My most vivid memory of the gathering is the look of delight on Fred's face throughout the day, even as speaker after speaker found something he had written to pick apart. Indeed, the pickier the speaker, the more delighted Fred appeared.

For the last decade, it was my privilege and pleasure to co-edit a constitutional law casebook with Fred, who came onto the book when I did. Fred took on what had been Steve Shiffrin's portfolio, and I inherited Yale Kamisar's. Then, for the last two editions, the two of us and our third co-editor, Dick Fallon, divided up the work that Jesse Choper had formerly done. Just over two weeks ago, Fred wrote to me and Dick to tell us that he was in hospice care for end stage renal failure. His email was remarkable for its matter-of-factness, good humor, and courage, concluding that he had found his work on our casebook "hugely gratifying, but all good things come to an end." Less than three weeks before that--at a time when Fred surely knew his prognosis--he was still actively engaged in last-minute revisions to our annual supplement and compact version of the casebook.

In that last respect, Fred reminded me so much of my own dear Sherry, who wrote furiously, cogently, and with humor until the very end, not because she was in denial but because her work was part of who she was. Of course, no one is entirely their work, least of all Sherry--or Fred.

Fred was a model scholar and generous colleague. I was not fortunate enough to have been his student, but I'm confident that he was also a wonderful teacher. He was thus a model academic. But much more than that, Fred was a terrific human being. I shall miss him immensely, even as I continue to find insight and inspiration in his magnificent body of work.