Scholars of administrative law study lots of things. We think, for instance, about recess appointments, especially in an era of divided government. We spend hours sussing out the differences, if any, between standards of review. All the while, we wonder what makes an “interpretative” rule interpretative, and whether certain areas of law are exceptional. And don’t even get us started on Chevron! But perhaps above all, administrative law scholars think about discretion—indeed, Professor Kagan identified “how to ensure appropriate control of agency discretion” as one of the most important questions in all of administrative law. The Supreme Court also worries about agency discretion. As Justice Kagan explained last term, discretion is often too important to leave in an agency’s “hands alone.”

This concern with discretion is yet another reason why the Supreme Court’s qualified immunity jurisprudence is so fascinating. As I’ve explained in the past, one of my interests is how to apply lessons from “Admin Law” to “Fed Courts” and vice versa. Qualified immunity is particularly interesting, moreover, because the Supreme Court has given lower courts deciding qualified immunity cases maximalist discretion whether to clarify constitutional rights or simply dismiss novel claims as not clearly established. But while the Court is often mindful of the need to safeguard administrative discretion and the potential for unintended consequences,* it hasn’t considered the dangers of discretion in qualified immunity cases.

That’s why I’m excited to announce that Chris Walker and I will soon publish a new empirical paper, Strategic Immunity, in the Emory Law Journal. This paper builds on the findings in our last paper, The New Qualified Immunity, which we published in the Southern California Law Review. But whereas The New Qualified Immunity largely focuses on the Supreme Court’s efforts to balance “constitutional avoidance” versus “constitutional stagnation,” Strategic Immunity explores an unintended consequence of this discretion: strategic behavior by judges.

Our paper first explores the theoretical dangers posed by this new form of discretion. Our hypothesis is that circuit judges may strategically opt to clarify or not clarify the law for reasons that have nothing to do with the factors set out by the Supreme Court (e.g., whether the issue is important, well-briefed, and unlikely to arise outside of the qualified immunity context). For instance, judges sitting with ideologically similar judges may exercise their discretion differently from when they are sitting with ideologically dissimilar judges. This risk is heightened, moreover, by the fact that circuit judges may choose to “unpublish” certain opinions, meaning that such decisions are less likely to clearly establish the law going forward.

Then, using a data set of about 800 cases, our paper observes how courts are behaving in the real world. The results are notable. Here is a summary from the paper:

The data suggest that when it comes to constitutional litigation, the ideological composition of a three-judge panel matters. Panels composed unanimously of judges appointed by a Republican President are more likely to exercise this new form of discretion to reach constitutional questions, and when they do so, are more likely to find no constitutional violation. Conversely, judges appointed by a Democratic President behave differently when they are the author of an opinion rather than a judge joining an opinion. Moreover, panels entirely appointed by a Democratic President are more likely than any other type of panel to recognize a new constitutional right. On mixed panels, however, there are no statistically significant differences in how the panels behave along these dimensions—regardless of which party is in the majority on the panel. In other words, when panels are ideologically divided, pronounced differences disappear, which itself could suggest strategic behavior via a collegial concurrence or, even a majority compromise to avoid dissent.

The discretionary power to “unpublish” decisions also may reflect strategic behavior. Perhaps most striking, one in five decisions recognizing a new constitutional right is not published—meaning that the panel’s decision may not, in fact, create liability in future qualified immunity cases. Moreover, judges appointed by a Republican President seem more likely to deny qualified immunity in unpublished decisions. Finally, the unpublished decisions reveal a number of divided opinions where strategic compromise seems to be taking place. After all, a dissent from an opinion is some indication that the majority opinion should have been published, yet they often are not published, potentially suggesting that compromise or fear of further review (either by the circuit en banc or the Supreme Court) may have led to its nonprecedential status.

Needless to say, there is too much in our paper to explain in a blog post—that’s what SSRN is for! If you are interested in administrative law, constitutional litigation, judicial behavior, and everything in between, we hope you read the paper and share your thoughts. The article isn’t scheduled to be published until later this year so we have time to update and revise. But our findings suggest that the Supreme Court may need to rethink the procedure it has created for qualified immunity.

* After all, while “discretion is the lifeblood of the administrative process,” the Justices also know that “unless [they] make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits.”