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Thursday, April 14, 2016

Strategic Immunity

Aaron Nielson and I just posted to SSRN a draft of our new article, Strategic Immunity, which is forthcoming in the Emory Law Journal. This is the second based on a data set of circuit court decisions dealing with qualified immunity. Aaron did a nice post about the article over at the Yale Journal on Regulation blog earlier this week. The draft is available here, and the first paper is here. Comments are welcome!

And here is the abstract:

The first rule of administrative law is that discretion can be dangerous. Although discretion is often used for its intended purposes, scholars of the regulatory process understand from both theory and experience that unintended consequences sometimes lurk in the background. This is one reason why the Supreme Court is cautious when it comes to agency discretion. After decades of preventing agencies from acting in arbitrary or even self-interested ways, the modern Court has developed a fairly sophisticated understanding of the risks and rewards of discretion and why it is essential to pay attention to incentives.

That is, unless the Supreme Court is addressing judicial discretion. Then, its sophistication all too often gets tossed aside. Qualified immunity is a perfect example. In Pearson v. Callahan, the Court granted judges confronting novel civil-rights claims maximalist discretion whether to decide constitutional questions for the benefit of the public. The intent behind this new discretion is sound: flexibility allows judges to balance constitutional avoidance versus constitutional stagnation in light of case-specific factors. What the Court forgot, however, is that discretion can also have unintended consequences.

This Article addresses perhaps the most serious of these unintended consequences: strategic behavior by judges. While the Court recognizes that administrative agencies may have incentives to use discretion in strategic ways, neither the Justices nor scholars have considered the strategic considerations that can influence a judge’s discretionary decision to clearly establish constitutional rights. The potential for strategic behavior is especially sharp, moreover, when discretion to decide constitutional questions is combined with discretion to issue unpublished, nonprecedential opinions. To illustrate this danger, this Article examines real-world judicial decisionmaking. Reviewing over 800 published and unpublished circuit decisions, this Article identifies significant “panel effects”: politically unified panels are more likely to exercise discretion to find no constitutional violation (for “all Republican” panels) or to recognize new constitutional rights (for “all Democratic” panels). Yet on mixed panels there are no differences, suggesting a collegial concurrence or a majority compromise to avoid dissent. Moreover, the decision to publish also appears to be used strategically. For instance, one in five decisions recognizing new constitutional rights is unpublished. The potential for strategic behavior — as in the administrative law context — counsels in favor of reform.

 

@chris_j_walker

Posted by Chris Walker on April 14, 2016 at 09:03 AM | Permalink

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