How disconnected from causation could a theory of presumptions really be? It seems to me that you quickly reach the point where administrative ease and other concerns run up against the political backlash caused when different groups of veterans perceived that they are being treated unequally. In addition, getting lay adjudicators to correctly administer the system gets very hard very quickly when the rules stop making intuitive sense. I'm just throwing that out there. I would be very interested in seeing a theory of presumptions that looked more broadly than just causation. But I'm concerned about the practical problems that occur when you try to deploy a sophisticated, counter-intuitive theory through instructions to non-attorney agents deciding claims of unrepresented veterans.

I know the Court has been less than fully faithful to Chevron, but are there specific areas where it has routinely relied upon canons that are in as much tension with Chevron as Gardner? I'd be interested in knowing if there is anything that provides for an apt comparison.

So is it true that administrative ease explains the spectrum of theories of tort recovery better than cost/benefit analysis or anything else? I'm just curious. I've never had the time to research the literature on Grand Unified Theories of Torts. I always assumed that tort theories were more normatively driven than determined by the practicalities of what can and cannot be judicially managed.

Jeff: But where does that pressure to create rules come from? In part, it comes from pressure to make sure similarly situated claimants get the same outcome. How do you dramatically trim down the rules without leading to situations where the adjudicators who have lots of discretion end up treating similar veterans differently? There was less discontent with inconsistent results decades ago when few knew what was going on outside their own claim, but in the internet age, people will quickly discover when different regional offices (or even different claims adjudicators) are producing inconsistent outcomes. I think the same is true for law in general. How do you structure the system to be simple, produce consistent results, and provide benefits that are tailored to circumstances of the individual?

Matt: I'll have more to say about the resource issue later. However, having listened to all the veterans law arguments at the Fed. Cir. in the last eight years, I'm not surprised that you found the cases confusing. A central problem with the system is the disconnect between all the bodies of review. The Fed. Cir. has never had a veterans law practitioner appointed to it. The CAVC has never had a member of the Board of Veterans' Appeals appointed to it. Regional office staff essentially never move to the Board because the RO adjudicators are not attorneys but Board members and staff are. If I could snap my fingers and change one thing about the system, it would be to create a career path that allows folks to move around the system and spread institutional knowledge so each body understands the others much better. Despite the great intelligence and best intentions of all involved, a lot gets lost in translation when the system is essentially a giant game of telephone. Anon: I am actually familiar with many of the (mostly new) clinics and I have met the directors of several of them. There was even a student from the Pitt clinic at the recent CAVC judicial conference. I won't have much to say about clinics here, but it will be interesting to what niches they carve for themselves.