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Technological Due Process

66 Pages Posted: 6 Sep 2007 Last revised: 4 Apr 2015

Danielle Keats Citron

University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project; Stanford Law School Center for Internet and Society

Abstract

Distinct and complementary procedures for adjudications and rulemaking lie at the heart of twentieth-century administrative law. Due process required agencies to provide individuals notice and an opportunity to be heard. Agencies could foreclose policy issues that individuals might otherwise raise in adjudications through public rulemaking. One system allowed focused advocacy; the other featured broad participation. Each procedural regime compensated for the normative limits of the other. Both depended on clear statements of reason.

The dichotomy between these procedural regimes has become outmoded. This century's automated decision-making systems collapse individual adjudications into rulemaking while adhering to the procedural safeguards of neither. Automated systems jeopardize due process norms. Their lack of meaningful notice, and a hearing officer's tendency to presume a computer system's infallibility, devalue hearings. Standard Mathews v. Eldridge cost-benefit analysis is ill-equipped to compare the high fixed cost of deciphering a computer system's logic with the accumulating marginal benefit of correcting myriad inaccurate decisions. Automation also defeats participatory rulemaking. Code, not rules, determines the outcomes of adjudications. Programmers inevitably alter established rules when embedding them into code in ways the public, elected officials and the courts cannot review. Last century's procedures cannot repair these accountability deficits.

A new concept of technological due process is essential to vindicate the norms underlying last century's procedural protections. This Article shows how a carefully structured inquisitorial model of quality control can partially replace aspects of adversarial justice that automation renders ineffectual. It also provides a framework of mechanisms capable of enhancing the transparency, accountability, and accuracy of rules embedded in automated decision-making systems.

Keywords: Administrative Law, Information Technology, Cyber law

Suggested Citation

Citron, Danielle Keats, Technological Due Process. U of Maryland Legal Studies Research Paper No. 2007-26; Washington University Law Review, Vol. 85, pp. 1249-1313, 2007. Available at SSRN: https://ssrn.com/abstract=1012360

Danielle Keats Citron (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Yale University - Yale Information Society Project

127 Wall Street
New Haven, CT 06511
United States

Stanford Law School Center for Internet and Society

Palo Alto, CA
United States

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