The Automated Administrative State: A Crisis of Legitimacy

50 Pages Posted: 3 Apr 2020

See all articles by Ryan Calo

Ryan Calo

University of Washington - School of Law; Stanford Law School Center for Internet and Society; Yale Law School Information Society Project

Danielle Keats Citron

University of Virginia School of Law

Date Written: March 9, 2020

Abstract

The legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative agencies have been on firm footing for a long time in reverence to their critical role in governing a complex, evolving society. They are delegated enormous power because they respond expertly and nimbly to evolving conditions.

In recent decades, state and federal agencies have embraced a novel mode of operation: automation. Agencies rely more and more on software and algorithms in carrying out their delegated responsibilities. The automated administrative state, however, is demonstrably riddled with concerns. Legal challenges regarding the denial of benefits and rights — from travel to disability — have revealed a pernicious pattern of bizarre and unintelligible outcomes.

Scholarship to date has explored the pitfalls of automation with a particular frame, asking how we might ensure that automation honors existing legal commitments such as due process. Missing from the conversation are broader, structural critiques of the legitimacy of agencies that automate. Automation throws away the expertise and nimbleness that justify the administrative state, undermining the very case for the existence and authority of agencies.

Yet the answer is not to deny agencies access to technology. This article points toward a positive vision of the administrative state that adopts tools only when they enhance, rather than undermine, the underpinnings of agency legitimacy.

Keywords: automation, administrative law

Suggested Citation

Calo, Ryan and Citron, Danielle Keats, The Automated Administrative State: A Crisis of Legitimacy (March 9, 2020). Emory Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3553590

Ryan Calo (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: http://https://www.law.washington.edu/directory/profile.aspx?ID=713

Stanford Law School Center for Internet and Society ( email )

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Yale Law School Information Society Project ( email )

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New Haven, CT 06511
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Danielle Keats Citron

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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