Cite as: 517 U. S. 690 (1996)
Scalia, J., dissenting
With respect to the second factor counseling in favor of deferential review, level of law-clarifying value in the appellate decision: Law clarification requires generalization, and some issues lend themselves to generalization much more than others. Thus, in Pierce v. Underwood, 487 U. S. 552, 562 (1988), a principal basis for our applying an abuse-of-discretion standard to a district court's determination that the United States' litigating position was "substantially justified" within the meaning of the Equal Access to Justice Act, 28 U. S. C. § 2412(d), was that the question was "a multi-farious and novel question, little susceptible, for the time being at least, of useful generalization." 487 U. S., at 562. Probable-cause and reasonable-suspicion determinations are similarly resistant to generalization. As the Court recognizes, these are "fluid concepts," " 'not readily, or even usefully, reduced to a neat set of legal rules' "; and "because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multifaceted, 'one determination will seldom be a useful "precedent" for another.' " Ante, at 695-696, 698 (quoting Illinois v. Gates, supra, at 232, 238, n. 11). The Court maintains that there will be exceptions to this—that fact patterns will occasionally repeat themselves, so that a prior de novo appellate decision will provide useful guidance in a similar case. Ante, at 698. I do not dispute that, but I do not understand why we should allow the exception to frame the rule. Here, as in Anderson v. Bessemer City, 470 U. S. 564, 574-575 (1985), "[d]uplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources."
The facts of this very case illustrate the futility of attempting to craft useful precedent from the fact-intensive review demanded by determinations of probable cause and reasonable suspicion. On remand, in conducting de novo review, the Seventh Circuit might consider, inter alia, the following
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