Wednesday, July 14, 2010
Richard E. Levy
(Kansas) & Robert L. Glicksman
(George Washington) have posted Agency-Specific Precedents
, 89 Tex. L. Rev. ___ (2010), on SSRN. Here is the abstract
As a field of legal study and practice, administrative law rests on the premise that legal principles concerning agency structure, administrative process, and judicial review cut across multiple agencies. In practice, however, judicial precedents addressing the application of administrative law doctrines to a given agency tend to rely most heavily on other cases involving the same agency, and use verbal formulations or doctrinal approaches reflected in those cases. Over time, the doctrine often begins to develop its own unique characteristics when applied to that particular agency. These “agency-specific precedents” deviate from the conventional understanding of the relevant principles as a matter of administrative law and raise fundamental questions for administrative law scholars and practitioners.
Our central thesis is that agency-specific precedents are a manifestation of the “silo effect,” a phrase commonly used in the literature concerning the operation of large organizations to describe the tendency of subdivisions to develop their own bureaucratic imperatives that create obstacles to information sharing and other forms of cooperation. After describing the emergence of administrative law as a body of generally applicable legal doctrine and introducing the silo effect and the related concept of information silos, the article presents five case studies of agency-specific precedents: (1) the treatment of “interpretive regulations” promulgated by the IRS; (2) the “reasoned decisionmaking” concept in judicial review of the FCC (and a few other agencies); (3) the requirement that EPA must docket ex parte communications of “central relevance” in rulemaking; (4) the treating physician rule in judicial review of SSA disability determinations; and (5) cases limiting the NLRB’s ability to overturn an administrative law judge’s credibility determinations based on demeanor. These agency-specific precedents cannot be fully explained by agency-specific statutes, programs, or practices that prompt specific judicial responses.
We postulate that agency-specific precedents are a manifestation of the silo effect and discuss how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce them. Precedents are a type of information that is costly to gather and apply and whose value in litigation depends on its precedential weight or authority. Because attorneys who practice in most administrative law fields tend to be specialized, the information costs of finding and citing cases involving the agency are much lower than the costs of doing so for cases involving other agencies, while the precedential weight of decisions involving the agency will be higher than that of cases involving other agencies. Courts rely heavily on the attorneys litigating a case to gather and present information concerning precedent, so the information costs of finding and analyzing precedents outside the agency in question will be passed along to the courts. In addition to considering the dynamic that contributes to the formation of agency-specific precedents, we discuss their normative implications in terms of consistency with statutory provisions (particularly the APA), promoting legal certainty, and the development of optimal administrative law doctrines. Although the balance of costs and benefits from agency-specific precedents varies according to the circumstances, some agency-specific precedents would appear to be unjustified. We suggest that greater attention to the phenomenon by attorneys, courts, and scholars would help to break down such undesirable agency-specific precedential silos.