Anton Abramov has posted Invisible Inconsistency: Information Burdens in Administrative Review on SSRN. Here is the abstract:
Administrative consistency review often assumes that the relevant administrative past is already available for comparison. That assumption becomes problematic when a claim depends on a pattern dispersed across nonprecedential decisions. A challenger may locate contrary outcomes yet lack the information needed to define the relevant comparison class or establish representativeness. This Article identifies threshold circularity: corpus-level information may be necessary to make the showing required before an agency must account for that information. It distinguishes the authority of a disposition from its comparability and representativeness, and reconstructs two neighboring evidentiary lines. Atlanta College and Pomona Valley require a response after an independently sufficient claimant showing; Canadian Commercial addresses production after an agency’s historical practice is already material. Neither supplies the earlier trigger examined here. The Article proposes a limited preliminary response when a corpus-dependent consistency concern has an objective basis, is properly before the agency, and has been pursued about as far as realistically available information permits. If material information remains inaccessible to the challenger but reasonably derivable from information maintained by the agency, the agency should not reject the concern solely for insufficient pattern evidence without accounting for that barrier. The ultimate burden of persuasion remains with the challenger. The proposal creates no general discovery right, presumption of inconsistency, prospective recordkeeping duty, or judicial authority to design agency information systems. An adequately explained inability to reconstruct practice may suffice. Mass adjudication serves as a stress test: scale matters when the informational demands of proof grow faster than usable access, not because large or automated systems are inherently suspect.
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