In Memoriam: Professor Frederick Schauer, a ‘Giant’ in the Legal Academy

Professor Frederick Schauer, a world-renowned legal philosopher and scholar of freedom of speech, constitutional theory, evidence and jurisprudence at the University of Virginia School of Law, died Sunday after a long illness. He was 78.

Schauer joined the faculty in 2008 as the David and Mary Harrison Distinguished Professor of Law, and was Frank Stanton Professor of the First Amendment, Emeritus, at Harvard’s Kennedy School of Government. Over the course of his life, he wrote more than 300 works on constitutional law and theory, freedom of speech and press, legal reasoning and the philosophy of law. A fellow of the American Academy of Arts and Sciences, he was a founding editor of the journal Legal Theory and a recipient of a Guggenheim Fellowship.

“Fred was a giant in the legal academy, one of the foremost scholars in the world in both jurisprudence and freedom of expression,” said Dean Leslie Kendrick ’06, who is also an expert on the First Amendment. “His immense body of work on free speech, evidence, rules and the nature of law has had a major impact on legal thought for 50 years and will continue to do so for decades to come.”

Schauer was also an accomplished photographer and woodworker, and treasured friend and mentor to many, including to Kendrick.

“His brilliance was matched by his unassuming manner, his mentorship of students and junior scholars, and his incredible generosity as an institutional citizen. He was both a globally renowned scholar and a first-generation high school, college and law graduate, who delighted in supporting first-generation students and helping all our students succeed. In so many ways, he was one of a kind. Fred’s passing is a deep personal loss.”

While on the Virginia faculty, Schauer wrote some of his most acclaimed work, including dozens of articles and book chapters and the books “The Proof: Uses of Evidence in Law, Politics and Everything Else” (2022), “The Force of Law” (2015) and “Thinking Like a Lawyer: A New Introduction to Legal Reasoning” (2009). He also co-edited “The Oxford Handbook on Freedom of Speech” (2021) and a previously unpublished book, “The Theory of Rules” (2011), by Karl N. Llewellyn, a founder of legal realism.

Schauer, who was born in Newark, New Jersey, earned both his A.B. and M.B.A. at Dartmouth College before graduating from Harvard Law School in 1972. He stayed in Boston, becoming what he called “a smut lawyer” — a litigator defending against obscenity prosecutions in state and federal courts.

By 1974, he had turned to academia, joining the faculty of the West Virginia University College of Law. He wrote his first treatise, “The Law of Obscenity,” in 1976, in which he defended the constitutionality, “if not the wisdom,” of obscenity restrictions, as detailed in a Virginia Journal profile of Schauer. Soon after the publication of his first book, he was a visiting scholar at Cambridge University, and from there, became the James Goold Cutler Professor of Law at the College of William & Mary Law School.

His 1982 book, “Free Speech: A Philosophical Enquiry,” helped shift scholarship from advocating for free speech to recognizing competing interests. Though the United States values free speech highly, as Schauer pointed out, other countries do not protect it to the same extent.

“That does not necessarily mean that the rest of the world is right and the United States wrong,” Schauer said in the Virginia Journal, “but it does suggest that it is a mistake to assume that free speech does not compete with other legitimate concerns, and a mistake to fail to recognize that we protect speech not because it is harmless, but despite the harm it may cause.”

Over time, Schauer’s interests expanded to include constitutional interpretation, comparative constitutional law and theories of constitutionalism, judicial review and judicial interpretive authority.

After seven years on the faculty of the University of Michigan Law School, he moved to Harvard, where he spent nearly two decades as the Frank Stanton Professor of the First Amendment at the Kennedy School of Government. While at the Kennedy School, he also served as academic dean and acting dean, and in 2004, received a university-wide Distinguished Teacher Award. His role at Harvard included teaching courses at its law school in evidence and the First Amendment, and supervising graduate students in jurisprudence and comparative constitutional law.

While there, he wrote another seminal work, “Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life” (1991).

It "remains the best thing ever written about the nature of rule-based decision-making,” Professor Caleb E. Nelson said of the book when Schauer joined the faculty.

Schauer continued to influence legal thought throughout his life. In 2021, he was listed as one of the top 20 most cited legal scholars of all time. “The Force of Law,” published in 2015, inspired scholarly events around the world analyzing the ideas Schauer put forth.

In a UVA Law School article announcing the book, Schauer said he had not written much about jurisprudence, or the philosophy of law, until he arrived at Virginia and started teaching a course on the subject.

At the time, the prevailing view in the field — that force and sanctions were not key to understanding the basic idea of law — was an idea he wanted to challenge.

“If we actually look at how law operates and how people obey the law, we will understand that what differentiates law, what makes law special, is that it tells us what to do and threatens us with bad stuff if we don’t do it,” he said. “Obedience to law just because it is law is very rare.”

The book “reinvigorate[d] the idea that law is coercive, thus breaking with the dominant strand that has denied the importance of force,” said Kimberly Kessler Ferzan, a legal philosopher at the University of Pennsylvania Carey Law School who previously served on the Virginia faculty, in an article about the book.

Schauer “contends not only that coercion is important to our understanding of law but also that the jurisprudential quest for essential characteristics of law is misguided,” she said. “He has changed the nature of the debate for generations to come.”

Schauer won the 2023 Scribes Book Award, which honors the best work of legal scholarship, for “The Proof: Uses of Evidence in Law, Politics, and Everything Else.”

“This book is a way to help people ask about evidence and answer questions about whether things in the world of fact are actually true or not,” Schauer said in an article in 2022. “There’s more information out there, and because there is more information out there, more of it is wrong. Especially in the internet era, there are fewer informational filters out there. And it’s easier to just say stuff and more people, to their credit, are trying to say, ‘Is there evidence for that?’”

Professor John C. Jeffries Jr. ’73, who was dean when Schauer was recruited, said “he was an academic star but always and unfailingly accessible to his junior colleagues. He was a great scholar and a great citizen.”

Professor Lawrence B. Solum, also a renowned legal theorist, had known Schauer for the past 40 years.

“At the very beginning of my academic career, Fred provided comments on my very first law review — an act of great kindness and intellectual generosity,” Solum said. “One of my most important scholarly projects, the development of virtue jurisprudence, originated with a paper I wrote that responded to a paper of Fred’s. Throughout my career, I have consulted Fred's work again and again on multitudinous topics. He is one of the greats, a scholarly giant and a wonderful human being. He is irreplaceable and his loss is a heavy blow that will be felt far beyond the University of Virginia.”

Professor Deborah Hellman, who directs UVA’s Center for Law & Philosophy, with which Schauer was affiliated, said his lack of pretension made him a generous mentor and colleague, even before she joined the Virginia faculty in 2012.

“He didn’t care about where articles were published, where people went to school or about other external markers of achievement or success,” Hellman said. “Instead, he cared about the quality of people’s work. When I was an unknown legal academic, he encouraged me to develop my ideas about the normative foundations of discrimination law into a book. When I had a draft ready, he gave me feedback, pushed me to consider arguments I had missed, and helped me to find a publisher. I am so deeply grateful for his support and his friendship.” 

When fellow legal theorist and UVA Law professor Micah Schwartzman ’05 heard Schauer was joining the faculty, he thought, “I couldn’t believe our luck.”

He had read Schauer’s work and knew him as a “tremendous” legal philosopher.

“But I didn’t know him personally and so couldn’t have known then just how lucky we really were. Fred was the best of colleagues and a wonderful friend,” he said. “Fred would probably have denied it, which would have been characteristic, but he was special — in his intellectual accomplishments and in the kindness, integrity and humanity he showed to the rest of us.”

Schauer was Professor Richard M. Re’s undergraduate college thesis adviser at Harvard. They kept in touch over the years, as Schauer visited UCLA when Re taught there earlier in his career, and they served on the faculty together at UVA.

“He had a huge effect on how I thought about everything in the law,” Re said.

One of Schauer’s former Jurisprudence students, James Nelson ’09, is now a professor at the University of Houston Law Center.

“Fred was a brilliant teacher and scholar,” Nelson said. “He was also an incredibly supportive mentor as I became a law professor. We only overlapped for a year at the Law School, but for the next 15 years, he always made time to give advice, read a draft or help in any way he could. He was an inspiration to his students and colleagues alike, and I will miss him dearly.”

Students also praised Schauer’s ability to explain complex topics.

“Even though he was one of the world’s leading scholars on free speech and First Amendment law, he made the doctrine accessible to all and patiently explained every concept,” said third-year law student Nimrita Singh, who took his class Constitutional Law II: Speech and Press in the fall of 2023. “His enthusiasm and his curiosity were infectious in the classroom — I didn’t want the course to end at the close of the semester.”

Schauer collected many accolades during his career. He received an honorary doctorate from the Vienna University of Economics and Business Administration in 2019. In 2020, he was elected a corresponding fellow of the British Academy, an honor fewer than 10 American legal scholars have garnered. At UVA, he received the Roger and Madeleine Traynor Faculty Achievement Award for his scholarship in 2011. In 2009, he won Green Bag’s Exemplary Writing Award for “A Critical Guide to Vehicles in the Park,” an article published in the New York University Law Review. He delivered the HLA Hart Memorial Lecture, considered a highly regarded mark of achievement, at Oxford’s University College in 2017.

Schauer has been a visiting professor of law at Columbia Law School, the Fischel-Neil Distinguished Visiting Professor of Law at the University of Chicago, the Morton Distinguished Visiting Professor of the Humanities at Dartmouth College, a Distinguished Visiting Professor at the University of Toronto, a visiting fellow at the Australian National University, Distinguished Visitor at New York University, and Eastman Professor and fellow of Balliol College at the University of Oxford.

He was chair of the Section on Constitutional Law of the Association of American Law Schools (1985-87) and of the Committee on Philosophy and Law of the American Philosophical Association (2006-08). He served as vice-president of the American Society for Political and Legal Philosophy (1996-98), and on the boards of numerous academic journals. During 1985-86, he served as commissioner of the Attorney General’s Commission on Pornography. The resulting report documented the growth of the porn industry and recommended ways to halt its spread.

Schauer lectured and taught around the world. His works have been translated into Italian, Spanish, Portuguese, French, Chinese and Turkish.

His work was so influential that it became the subject of other scholars’ work through numerous special issues of journals and law reviews, and three books: “Rules and Reasoning: Essays in Honour of Fred Schauer,” edited by Linda Meyer; “A Demokracia es a Szolasszabadsag Hatari,” edited by Andras Koltay; and “The Force of Law Reaffirmed,” edited by Christoph Bezemek and Nicoletta Ladavac.

Schauer’s wife, Barbara A. Spellman, is a professor of psychology and a professor of law on the UVA Law faculty. She and Schauer wrote many articles together that drew from both disciplines.

The Law School Foundation has established the Professor Frederick Schauer First-Generation Fund, which will benefit first-generation students. Gifts can be made at law.virginia.edu/gift. In the gift designation box, indicate the gift is for the Professor Frederick Schauer First-Generation Fund. Checks can also be made payable to the University of Virginia Law School Foundation, with the fund’s name in the memo portion of the check. Checks can be mailed to the University of Virginia Law School Foundation, 580 Massie Road, Charlottesville, VA 22903.