Artificial Administration: Administrative Law in the Age of Machines
25 Pages Posted: 12 Dec 2019 Last revised: 3 Nov 2020
Date Written: November 25, 2019
We live in the era of Big Data and we are now entering the world of artificial administration, where governmental bodies will replace or displace human decision-makers with information technology. A clash of value systems is or will soon be upon us, between technologists who insist on the power of correlation and lawyers who refuse to yield on the time-honoured fundamentality of causation. In this paper, I map out the terrain for the conflicts to come and offer some thoughts as to how they might be resolved.
Information technology has, in principle, the capacity to improve the accuracy and efficiency of administrative decision-making, so figuring out how such systems can be integrated into existing regulatory schemes is an important and difficult task.
My primary thesis is that thinking about the norms of administrative law is a useful first step in determining the appropriate scope of the use of information technology in public administration. One of the most profound controversies about artificial administration relates to its opacity as, unlike decisions made by humans, the reasoning processes used by techniques such as neural nets defy explanation and justification in conventional terms, undermining the safeguards of legality, rationality and procedural propriety which courts have attempted to require of administrative decision-making processes. I nonetheless identify conditions in which artificial administration would be an appropriate addition to the administrative decision-making toolkit.
My secondary thesis is that these controversies provide a platform for consideration of the role of artificial administration in administrative decision-making. Moreover, they prompt reflection on a deeper question – which norms will shape the future of public administration, the solution-driven boosterism of Silicon Valley technologists or the culture of justification of public law jurists? I will note that artificial administration can be integrated into existing decision processes in a manner respectful of existing norms of administrative law. But I will also identiy norms which technologists could internalise. If they were to do so, the potential for future tension would be greatly reduced. Where tension exists it is mostly because of the opacity problems generated by artificial administration, involving the use of technology which is inexplicable in human terms. If those responsible for designing artificial administration put their energies into building systems which are capable of satisfying administrative law norms of justification, transparency and intelligibility, its integration into public administration will be much smoother and much less controversial.
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