Emily Cauble (Wisconsin; Google Scholar), Exceptional Cases (reviewing Joshua D. Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar), Automated Agencies: The Transformation of Government Guidance (Cambridge University Press 2025)):
In their recent book, Automated Agencies, Professors Blank and Osofsky offer what the book front matter aptly describes as “the definitive account of how automation is transforming government explanations of law to the public.” As they lay out in detail, for many decades the private sector has used automated systems to provide customer service, and government agencies have done the same by developing and making available various online tools to provide the public with guidance on applicable law. As they note, sometimes automated tools offer guidance that does not align with actual law. One example they describe entails the IRS’s automated tool informing a hypothetical user that they are not entitled to a medical expense deduction for the cost of a home health aide, an arguably incorrect answer given the user’s unique circumstances. As Professors Blank and Osofsky speculate, in that case, the IRS’s automated tool’s answer “likely reflects the IRS’s decision that the automated legal guidance system should offer responses that are correct for most taxpayers, even at the cost of offering incorrect responses for some.” This theme – that automated guidance does not deal well with exceptional cases – is one theme upon which I will elaborate in this Essay.
As Professors Blank and Osofsky explain in the book and have explained in their prior work, informal guidance often features “simplexity” which “occurs when the government presents clear and simple explanations of law that is, in fact, ambiguous or complex.” In other words, through informal guidance, the government makes law appear simpler than it actually is by, for instance, omitting various exceptions, caveats, and sources of uncertainty. While this may make it easier for the public to understand the law when they are not affected by the exceptions, it also may mislead members of the public who are affected by the exceptions. Moreover, misled users may be left with limited legal recourse if they follow the guidance.
In this essay, I will elaborate upon seven observations and themes of the book:
(1) the inequity inherent in informal guidance’s divergence from formal law, (2) the introduction of an important conceptual distinction: unilateral guidance versus bilateral guidance, (3) a question raised by the book that lurks a bit below the surface – what constitutes reliance on informal guidance?, (4) an interesting proposal to increase transparency by making available the decision tree that guides the IRS’s automated tool, (5) the insider perspective on agencies’ opinions about their automated tools, (6) the IRS automated tool’s tendency to ask the user legal questions that may deceptively appear non-technical, and (7) automated guidance’s failure to properly address exceptional cases. With respect to each of these observations and themes, I will offer additional commentary. Some of the additional commentary is based upon results obtained from surveys that I have conducted.
This Essay will proceed as follows. Part I will describe some examples of ways in which informal guidance could mislead users that will be used to inform later discussion in the Essay. Then Parts II through VIII will discuss the observations and themes listed above.
Editor’s Note: If you would like to receive a daily email with links to tax posts on TaxProf Blog, email me here.
