Emory Law Journal


Empirical evidence shows that judges¿ use of discretion follows certain trends that imply that judges consider factors besides the public interest when they exercise their discretion. These strategic decisions show that the Supreme Court may need to rethink the level of discretion or deference granted to the judges in certain doctrines such as qualified immunity. In Pearson v. Callahan, the Court granted judges confronting novel civil-rights claims maximalist discretion whether to decide constitutional questions for the public¿s benefit. 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 federal agencies may have incentives to use discretion in strategic ways, neither the Justices nor scholars have considered the strategic considerations influencing a judge¿s discretionary decision to clearly establish constitutional rights.