Agency-Specific Precedents: Rational Ignorance or Deliberate Strategy?
24 Pages Posted: 9 Sep 2011 Last revised: 4 Oct 2011
Date Written: 2010
Administrative law scholars have debated the seeming paradox of a field with general legal principles applied to a diverse group of agencies. This essay is an online response to an article by Professors Richard Levy and Robert Glicksman in which they observed a silo effect in which litigants and judges rely heavily on agency-specific precedents, leading to unintended deviations in the application of administrative law doctrine. According to Levy and Glicksman, such agency-specific precedents arise from attorney specialization, an inability of attorneys to expand their knowledge to other areas, and an inability of judges to compensate for incomplete briefing.
While recognizing the validity of Professors Levy and Glicksman's observation, this essay observes that their portrayal is incomplete. In particular, the essay argues that attorneys in some cases may have entirely rational and deliberate reasons for encouraging and exacerbating agency-specific deviations from general administrative law doctrinal norms. With a focus on tax administrative practices and litigation strategies, the essay argues that both deliberate strategy and rational ignorance explain deviations from general principles of administrative law in the tax area. Recent tax cases, however, suggest some movement in the tax area back toward the uniformity that Levy and Glicksman advocate.
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