Algorithm vs. Algorithm

61 Pages Posted: 8 Feb 2022 Last revised: 11 Mar 2022

See all articles by Cary Coglianese

Cary Coglianese

University of Pennsylvania Carey Law School

Alicia Lai

Susman Godfrey, LLP; University of Pennsylvania Law School

Date Written: 2022


Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, cognitive biases, and racial prejudices, among other problems. On an organizational level, humans succumb to groupthink and free-riding, along with other collective dysfunctionalities. As a result, human decisions will in some cases prove far more problematic than their digital counterparts. Digital algorithms, such as machine learning, can improve governmental performance by facilitating outcomes that are more accurate, timely, and consistent. Still, when deciding whether to deploy digital algorithms to perform tasks currently completed by humans, public officials should proceed with care on a case-by-case basis. They should consider both whether a particular use would satisfy the basic preconditions for successful machine learning and whether it would in fact lead to demonstrable improvements over the status quo. The question about the future of public administration is not whether digital algorithms are perfect. Rather, it is a question about what will work better: human algorithms or digital ones.

Keywords: Artificial intelligence, machine learning, algorithmic decisionmaking, public administration, e-government, digital government, government regulation & benefits, cognitive limitations & biases, multicriteria decisionmaking, fairness, due process, risk management, administrative law

Suggested Citation

Coglianese, Cary and Lai, Alicia, Algorithm vs. Algorithm (2022). Duke Law Journal, Vol. 72, p. 1281, 2022, U of Penn Law School, Public Law Research Paper No. 22-11, Available at SSRN:

Cary Coglianese (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-6867 (Phone)


Alicia Lai

Susman Godfrey, LLP ( email )

New York, NY
United States

University of Pennsylvania Law School ( email )

Philadelphia, PA 19104
United States
8142066530 (Phone)

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