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Thursday, October 10, 2019

A Tale of Two Clarity Doctrines

Many controversial legal doctrines are concerned with clarity, but they are not all treated the same way. At the moment, perhaps the most interesting pairing involves qualified immunity and Chevron. Under the doctrine of qualified immunity, police and other government officers may be held personally liable for damages only if they transgressed “clearly established law.” And, under Chevron, administrative agencies have leeway when interpreting statutes, unless “the intent of Congress is clear.” One of these standards asks about law and the other about intent, but both try to get at what is legally clear—and so seem similar.

In practice, however, the Supreme Court treats these two doctrines quite differently. Qualified immunity has morphed into a seemingly insurmountable barrier to damages, with the Court routinely enforcing the “clearly established law” requirement through summary reversals, often unanimously. By contrast, Court majorities have long been prepared to find that agencies have defied clear statutory directives, and the Justices don’t typically enforce Chevron via summary relief. In fact, recent decisions have so diluted and pockmarked Chevron deference that some justices have wondered if the case has been silently overruled. Legal clarity thus seems to have shrunk almost to the vanishing point for qualified immunity, even as it remains substantial, and growing, in connection with Chevron.

Further, a number of justices have found the very idea of legal clarity to be problematic in the context of Chevron and related doctrines, but not in the context of qualified immunity. To wit, then-Judge Brett Kavanaugh wrote an important article arguing that Chevron’s clarity standard is vacuous; and, last summer, four justices cited Kavanaugh’s paper in leveling a similar charge against the clarity standard underlying Auer deference. Even Justice Elena Kagan, no Chevron nihilist, has noted that different justices apply Chevron differently. By contrast, the qualified immunity standard is generally viewed as high, but not amorphous.

How should we account for the discrepancies between qualified immunity and Chevron? I suggest part of the answer in a just-published article entitled Clarity Doctrines. While qualified immunity and Chevron have similarly worded tests for clarity, they adopt dissimilar vantage points. Qualified immunity assesses legal clarity from the perspective of a stylized officer in field. By contrast, Chevron adopts the perspective of the deciding court.

This perspectival difference stems from the doctrines’ different purposes. Qualified immunity aims to accommodate the legal challenges faced by inexpert officials who struggle to understand the law. The doctrine’s focus is thus on legal prediction. Chevron, on the other hand, is often viewed as an attempt to honor legislatively implied delegations. Because Congress’s intent is the lodestar, Chevron cares about legal certainty.

Given their different purposes and perspectives, these two doctrines not only started in different places, but also set out in different directions. Qualified immunity’s focus on predictability made it easy, even natural, for courts to ratchet up the standard for clarity ever higher, so as to accommodate—and respect—legally inexpert officials. By contrast, Chevron’s emphasis on certainty has challenged the justices to draw a fine line between their own beliefs about the law and their own confident beliefs—a point that Justice Stephen Breyer presciently made decades ago. These opposed doctrinal tendencies have compounded over time, yielding problems that are almost mirror-images of one another: one doctrine that demands nearly perfect clarity, and another that blurs clarity with mere correctness.

Once we see the difference between clarity-as-prediction and clarity-as-certainty, a host of potential reforms present themselves. Most obviously, the Court might inject greater attention to certainty into prediction-based doctrines, and greater attention to predictability into certainty-based doctrines. To give just one example, the Court might hold that qualified immunity is generally available, or available in run-of-the-mill cases, only if the deciding court is at least somewhat unsure of the correct answer. I raise that and other possibilities in my article and hope to say more about them in future work.

Some readers may be drawn toward a simpler and more cynical account why qualified immunity and Chevron differ. For instance, the Court’s relatively conservative majority might like to insulate police from damages while invalidating federal regulation. Thus, qualified immunity grows stronger while Chevron withers. That account has something to it. Doctrinal tendencies are not self-executing or inevitable. And judicial ideology does help explain the design of these doctrines, as well as their implementation.

But the cynical picture is still too simple. It misses that many criticisms of these two doctrines are cross-ideological, longstanding, and intensifying. It omits how the doctrines’ initial designs facilitated later ideological exploitation. And it fails to see, perhaps even dismisses, valuable modes of doctrinal reform and recalibration. These two doctrines may have been molded by ideological currents, but they also help to direct those same currents.

Posted by Richard M. Re on October 10, 2019 at 08:35 AM | Permalink


To be clear, Howard's point is my point exactly. I don't think one can compare between the clarity threshold involved in saying whether it's clear if a statute means x or y, and the clarity threshold involved in saying whether it's clear under some cases if a police officer violated the Fourth Amendment when he shot the dog on a leash who was baring his front teeth, but not acting that viciously. These are very different kinds of questions about very different kinds of legal materials.

I don't get your first rejoinder at all, because it isn't as if you could decide 1983 or habeas cases on the basis of statutes instead of "relatively specific judicial decisions." They involve constitutional claims, so what statutes can one look to? On your second point, I don't think lenity breaks from the pattern; it's just Chevron intensified and quite the opposite of qualified immunity, and if anything tends to support my suggestion that statutory ambiguity and doctrinal ambiguity are categorically different kinds of things.

On avoidance, my response is more complicated. Avoidance may or may not have a less demanding ambiguity threshold than Chevron; I tend to think that as practiced by most people, it doesn't, but that practiced by some judges, it does. If it is less demanding in practice, that has nothing much to do with predictability vs. certainty (you don't claim that avoidance is any more about predictability than Chevron is), and I don't think it defuses the objection I'm gesturing towards that statutory clarity and as-applied doctrinal clarity are entirely different things and the latter generally requires more clarity. Rather, whatever difference we do see between Chevron and avoidance is probably only a function of some judges' antipathy towards Chevron and disinclination to apply it in good faith, on the one hand, and, on the other, what you call the Court's enthusiasm for avoidance, which leads to bad-faith findings of ambiguity. The same people who like avoidance are also wont to make very doubtful claims of ambiguity in cases where a statute's seemingly clear meaning merely leads to an unpleasant but constitutional result (King v. Burwell, Yates); at the same time, judges who are normally enthusiastic about avoidance will go out of their way to avoid avoidance when there's a constitutional question they're interested in reaching (Citizens United). Cases like Northwest Austin or Bond stand, to me, neither for what avoidance is really about as implemented in the minerun of cases, nor, contra your Green Bag article, for a conception of statutory ambiguity that can be taken remotely seriously or even that the authors of those opinions take seriously or have any intention to implement on a regular basis in any context (including avoidance cases), but only for the proposition that if the Court really wants to put off deciding a difficult or highly politicized constitutional question, or really wants to rewrite a statute they really don't like, it's always possible to find a way to say any statute's ambiguous, even if in doing so one makes very little sense.

Posted by: Asher Steinberg | Oct 10, 2019 7:47:13 PM

Does it make a difference that the clarity in Chevron is of a statute, while the clarity in Q/I is about a mass of case law arising from a range of (factually similar???) controversies?

Posted by: Howard Wasserman | Oct 10, 2019 5:56:06 PM

Many thanks to all.

Orin: I completely agree that clarity thresholds should be set based on the purposes or “competing interests” of the relevant doctrines. That is actually a central claim in the full article. But that point alone only tells us to expect differences; it doesn't tell us what differences to expect and so can't fully explain the points discussed in the post, such as why Chevron is criticized as vacuous, whereas QI keeps getting ratchetted up. To see why that is happening, we also have to think about perspectival differences. Also, most of the examples you gave don’t involve legal clarity, but instead focus on facts or non-clarity, and so seem less apt as comparators.

Asher: I wonder whether the causation might run the other way: if you care about notice, you may be more likely to focus on relatively specific judicial decisions as opposed to underlying statutes. At any rate, and as you note, there are doctrines that break from the pattern you suggest. The paper discusses lenity and avoidance as possible examples. Even qualified immunity is canonically phrased as being about “law,” not necessarily case law.

Posted by: Richard | Oct 10, 2019 5:32:49 PM

Interesting post as always, Richard. I had a slightly different reaction to the question, though, that it wasn't entirely obvious to me why Chevron and qualified immunity are similar enough to then ask how they differ. It's true that both are doctrines that require clarity before a legal outcome is triggered. But I would think that characteristic is true of almost everything in American law, or at least lots of things. For example, the law requires proof beyond a reasonable doubt to convict a person of a crime. The law requires a varying threshold showing of likelihood of success on the merits for a preliminary injunction. The law requires probable cause to make an arrest. Applying law typically requires establishing some fact or legal status (or hybrid between them) to reach a legal result, and as part of that the judges who craft the law pick an assigned level of clarity before that fact or legal status (or hybrid between them) is triggered. Maybe this is just my quirky reaction, but I would have thought that the reason why judges pick a particular level of clarity for a particular doctrine is normally reflective of the competing interests at stake in that particular doctrine, and that we wouldn't expect the same level across different doctrines because the competing interests are typically different. My two cents, at least (along with my confession that I haven't read the paper yet, and this may all be answered in it!)

Posted by: Orin Kerr | Oct 10, 2019 2:05:51 PM

Is AEDPA about clarity as predictability or clarity as certainty? You can make an argument for the former, but it's obviously less obvious (as you acknowledge in the article) that it's about clarity as predictability than qualified immunity is; at the least, there's hardly any explicit discussion in habeas opinions about whether state court judges were on fair notice of some point of law. Yet there's very little if any difference between what it takes to deem something clearly established in qualified immunity and clearly established in habeas. If AEDPA isn't about predictability, or might not be, but its test for clarity is essentially identical to qualified immunity's, consider whether what actually motivates the very large differences between qualified immunity and Chevron is actually just the sort of legal materials to which these doctrines apply -- judicial opinions on the one hand and statutes on the other. I don't know that you can point to a Chevron-like doctrine that applies to judicial opinions, or a qualified-immunity-like doctrine that applies to statutes (with the possible exception of the one just invented in Taggart v. Lorenzen a few months ago, but it remains to be seen how qualified-immunity-like that one will be).

Posted by: Asher Steinberg | Oct 10, 2019 12:24:39 PM

Interesting. I would add simply, that the qualified immunity, deals rather with facts and circumstances ( and less with intent even ). All under stress many times. Quickly evolving situations in the field. Chevron rather, deals more with issues of law rather. That is why, courts approach very carefully, the conduct of federal officers ( typically, fourth amendment issues causing troubles ). Here I quote the fifth circuit:

The plaintiffs urge that Beck is “patently distinguishable.” Any possible distinction, though, must be viewed through the requirement that the law, including a distinction, must be “sufficiently clear that every reasonable official would understand that what he is doing is unlawful” at that time. Wesby, 138 S. Ct. at 589 (quotation marks omitted). That means “existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.” Id. Perhaps most relevant, the “legal principle [must] clearly prohibit the officer’s conduct in the particular circumstances before him. The rule’s contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” Id. at 590 (emphasis added).

End of quotation:

So we read: " at the time". or : "in the particular circumstances before him ". So, facts, circumstances, and discretion of real time rather, and under stress.

Here to the ruling:



Posted by: El roam | Oct 10, 2019 10:36:55 AM

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