ACADEMIC ARTICLE SUMMARY
The Automated Administrative State: A Crisis of Legitimacy
Article Source: Emory Law Journal, Vol 70, Issue 4, 797-846, 2021
Publication Date:
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ARTICLE SUMMARY
Summary:
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
Policy Relevance:
Agencies should use automation to enhance fairness and effectiveness, not simply to cut costs.
KEY TAKEAWAYS
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.
- One amputee was denied nursing care by a state agency, as he had "no foot problems."
- 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.
- When a machine takes on a task previously committed to a human being, often, guarantees of accountability, due process, and transparency evaporate.
- 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.