The Automated Administrative State: A Crisis of Legitimacy

Article Source: Emory Law Journal, Vol 70, Issue 4, 797-846, 2021
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Time to Read: 2 minute read
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Federal and state agencies increasingly use automation and software to carry out their responsibilities, resulting in a loss of due process and accountability. However, some agencies use technology effectively.


Policy Relevance:

Agencies should use automation to enhance fairness and effectiveness, not simply to cut costs.


Key Takeaways:
  • Federal and state agencies increasingly rely on automation, software, and algorithms to carry out their responsibilities, often resulting in bizarre outcomes and denial of rights and benefits.
    • One amputee was denied nursing care by a state agency, as he had "no foot problems."
    • Agencies often cannot explain how the system works or addresses errors.
  • Judicial review of automated decisions is difficult because the systems do not create an audit trail, and judges have a strong tendency to defer to a computer's findings.
  • Legislators delegate authority to agencies because of a need for regulators’ expertise and for nimble responses to complex problems; however, automation of agency functions may foreclose the agency’s exercise of discretion and expert judgment, undermining arguments for agencies’ legitimacy.
    • When a machine takes on a task previously committed to a human being, often, guarantees of accountability, due process, and transparency evaporate.
    • Constitutional doctrines approving the delegation of legislative authority to human beings do not address the legitimacy of further delegation to machines.
  • Administrative agencies are underfunded, and agencies should not be abandoned because they are driven to use automation by political and economic forces.
  • Agencies can use advances in technology effectively; for example, police forces can use algorithms to identify officers at greater risk for use of excessive force, leading to a reduction in misconduct.
  • Effective automation furthers values such as access, quality, and self-assessment; these systems make the administrative state fairer and more effective, and are not just designed to reduce costs.
  • Machines are increasingly good at modelling complex situations, and could be used effectively to simulate the effect of new regulations.
  • Agencies should use automation to meet more stringent standards of governance, although it will be hard to distinguish enhancing technologies from inefficient technologies in advance.



Danielle Citron

About Danielle Citron

Danielle Citron is the Jefferson Scholars Foundation Schenck Distinguished Professor in Law at the University of Virginia School of Law. She writes and teaches about privacy, free expression and civil rights. She is an Affiliate Scholar at the Stanford Center on Internet and Society, Affiliate Fellow at the Yale Information Society Project, Senior Fellow at Future of Privacy, Affiliate Faculty at the Berkman Klein Center at Harvard Law School, and a Tech Fellow at the NYU Policing Project.

M. Ryan Calo

About M. Ryan Calo

Ryan Calo is the Lane Powell and D. Wayne Gittinger Professor at the University of Washington School of Law. He is a founding co-director (with Batya Friedman and Tadayoshi Kohno) of the interdisciplinary UW Tech Policy Lab and the UW Center for an Informed Public (with Chris Coward, Emma Spiro, Kate Starbird, and Jevin West). Professor Calo holds adjunct appointments at the University of Washington Information School and the Paul G. Allen School of Computer Science and Engineering.