Judicial Review Evidence in the Era of the Digital State

Abstract

Automated decision-making (ADM) in the public sector creates a wide range of issues that require public law analysis. A precondition of such analysis is the existential question of whether mechanisms for enforcing public law norms will continue to be effective in the era of the digital state. This article considers one institutional manifestation of that fundamental question: how public law errors in ADM systems are evidenced in judicial review proceedings. Our analysis of the nature of proving error in ADM systems reveals that this emergent mode of administration will likely have a range of impacts on contemporary judicial review evidence practices — we identify seven potential effects. This exploration also exposes how current scholarship is operating on a deficient account of the role of evidence in public law adjudication. In this sense, our thesis reveals how advancements in digital government expose the frailties and limitations of our existing understanding of public law.