Before entering the academy, I had an idea: Why not apply administrative law principles to certiorari? Whether to grant cert is a discretionary decision; administrative law is concerned, perhaps above all else, with how to manage the dangers and benefits of discretion; why not then apply the lessons from administrative law to certiorari? After a few minutes of literature review, I discovered that it turns out that that Kathryn Watts already wrote that article. But the bigger idea that administrative law’s lessons can be applied even when one of the party’s names isn’t a federal acronym is something that drives my thinking and research (as does, of course, the inverse; it seems to me that administrative law has much to learn from complex litigation).*

It is in this spirit that I’m excited to announce a new project that Chris Walker and I have been working on that combines administrative law principles with constitutional litigation – in particular, qualified immunity. In our paper, The New Qualified Immunity, which we just posted on SSRN and which is forthcoming in the Southern California Law Review, Chris and I address the Supreme Court’s latest procedural rules for qualified immunity. In short, since 2009’s decision in Pearson v. Callahan, the Court has given lower courts maximalist discretion whether to clarify constitutional doctrine or to simply dismiss novel claims as not clearly established. Reviewing over 800 cases and nearly 1,500 claims, our paper analyzes how circuit courts have been applying Pearson. Our goal is identify the substantive consequences of that procedural discretion.

Our paper focuses on three consequences. First, we measure the risk of “constitutional stagnation.” Before a civil-rights plaintiff can be awarded damages from an individual officer, she must show (1) a violation of a constitutional right (2) that that was “clearly established” at the time. Before Pearson, courts were required to decide those two questions in order. After Pearson, courts, in their “sound discretion,” can instead opt to jump to the second issue. The reason why courts were initially required to decide both questions was that many feared that constitutional law would stagnate, particularly for novel claims. After all, if courts always jumped to the second prong, would law ever become clearly established? At the same time, deciding constitutional questions in all cases runs into real problems, including the foundational rule that courts should generally avoid answering constitutional questions whenever possible. In Pearson, the Court split the difference, allowing judges to decide constitutional questions but not requiring them to do so. Our paper measures how courts exercise this discretion. The short answer: Courts still decide a lot of constitutional questions in these cases, but concerns about constitutional stagnation may not be entirely unfounded.

Second, we address whether Pearson may result in geographic asymmetries. Our hunch is that after one court decides a merits question, other courts tend to follow that first court’s reasoning. This suggests that it may matter how often individual courts use their Pearson discretion to decide constitutional claims; those courts that decide more constitutional claims, after all, might have an outsized influence. Moreover, disuniformity across the circuits may be problematic for other reasons. Our paper shows that courts do not exercise their Pearson discretion in the same fashion. In many ways, the Fifth Circuit is not the Ninth Circuit – and that extends to qualified immunity.

Third, we address the risk that Pearson may distort the development of constitutional law by muting the views of minimalists. If there are groups of judges who are less likely to decide “unnecessary” constitutional questions, and if those groups have distinct views about the substance of constitutional doctrine (i.e., minimalist judge are more or less likely than other judges to find constitutional violations), then over the long run the law may drift away from those minimalist judges because ofPearson discretion. Although our findings are tentative, there is reason to fear that this “drifting away” process may be occurring.

And that brings us to administrative law. When discretion is involved, it is wise to think long and hard about how that discretion should be safeguarded. In the context of administrative law, which overflows with discretion, courts have to come to recognize the power of reason giving. Reason giving is not a silver bullet; it does not solve all substantive problems. But it is also can be a cost-justified way to constrain discretion without extinguishing it. In our view, the Supreme Court should require courts to give reasons for their decision whether to exercise Pearson discretion—something that our review of nearly 1500 claims suggests that courts rarely do now. For reasons we explain in our paper, this may mitigate some of the dangers of Pearson without imposing too heavy a burden on federal courts.

Obviously, our findings and arguments are more complex than can be spelled out in a blog post (that’s why you should download the paper). But I hope that this sort of research will pay dividends for scholars of both regulation and constitutional litigation. Administrative law has decades of experience with high-stakes discretion, but that sort of discretion is not limited to administrative law. Our paper explores whether insights learned from one context can be extended to another.

* One of my favorite papers, by Maggie Lemos, involves applying nondelegation principles outside of the administrative context. Sasha Volokh is working on a similar project.