Richard E. Levy & Robert L. Glicksman

89 Texas L. Rev. 499

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Administrative law presumes the existence of a body of generally applicable legal principles and doctrine concerning administrative agencies. However, Professors Levy and Glicksman describe their observation of a phenomenon that they refer to as “agency-specific precedents.” As courts rely on other cases involving the agency under review and repeat the same approaches, legal doctrine often develops unique characteristics as to specific agencies. At times, these formulations deviated significantly from the conventional understanding of administrative law.

The authors argue that this phenomenon has important implications for administrative law. The proliferation of such precedents creates anomalies and inconsistencies in some cases and hampers the development of administrative law in others. Yet, there may be advantages to agency-specific precedents. This article calls attention to the phenomenon of agency-specific precedents, explores its causes, and discusses its implications.

The authors’ thesis is that agency-specific precedents are a manifestation of the “silo effect,” which describes the tendency of subdivisions of large organizations to develop their own bureaucratic imperatives that create obstacles to information sharing and other forms of cooperation. The authors use five case studies of agency-specific precedents involving different agencies and different administrative law doctrines to make their case.

The authors argue that agency-specific precedents are a manifestation of the silo effect. They note how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce that effect. Normatively, the authors conclude that while the balance of costs and benefits from agency-specific precedents varies according to the circumstances, greater attention to this phenomenon would help break down undesirable agency-specific precedential silos.