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

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

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 )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Yale Law School Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Danielle Keats Citron

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

HOME PAGE: http://www.bu.edu/law/profile/danielle-citron/

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

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
577
Abstract Views
3,750
rank
52,418
PlumX Metrics