Rulemaking Ex Machina

Abstract

Emerging technologies promise to expedite administrative rulemaking by analyzing public input through computerized natural language rather than clunky, old human brains. Moving far beyond software that keyword searches and deduplicates content, natural language processing (as a type of predictive coding) employs artificial intelligence that adapts and modulates depending on inputs, rendering it fluid and dynamic. With the current concerted push to streamline agencies, the question of how and when to use automation in rulemaking will likely be decided in the next year. Considering that recently, a single proposed rule garnered over 3.7 million public comments, mechanisms that can make comprehending those comments “10,000%” faster have intuitive and intoxicating appeal. Even though natural language processing software is in its infancy — its potential to impact the workings of the administrative state and with it, government policy and programs — is limitless.

But before embracing this high-tech panacea, it is incumbent on policymakers, scholars, and attorneys to consider how implementing such innovations could undermine or enhance existing legal systems. This Piece begins that inquiry by looking to the core of administrative policymaking. Part I will outline the requirements of the Administrative Procedure Act (APA) and specifically notice-and-comment rulemaking. Part II then proceeds to flag key ways that automation can support or hinder the legal exercise of agency action.

Such an analysis does not exist in a vacuum; legal-ethics scholars have grappled for some time with whether algorithms can approximate the work of lawyers. Often juxtaposing ethical considerations and substantive legal skills to the pragmatic needs of dealing with the explosion of e-discovery, the ethics scholarly community has engaged in a measured exploration of coding’s virtues and vices that challenges the idea that predictive coding is an “unmitigated good.” In practice, predictive coding has taken the legal-services market by storm. The Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the American Bar Association Model Rules of Professional Conduct have hastened to respond to the changes brought by a digital age. These ongoing conversations over emerging uses of technology in different legal fields can inform some of the debates over whether computers can do the work of administrative policymakers.

Keywords: rulemaking, automation, predictive coding, data processing