Law Commons^™

Open Code Governance, Danielle K. Citron

Faculty Scholarship

Automated information systems offer an opportunity to improve the democratic legitimacy of the administrative state. Today, agencies transfer crucial responsibilities to computer systems. Computers gather and interpret important information. For instance, electronic machines record and calculate votes. Automated systems execute policy and render decisions about important individual rights, such as a person's eligibility for public benefits. Computer systems store sensitive personal information. These systems' closed architecture, however, shields vital agency decisions from view. No one can see how a system operates without a software program's source code. Closed code hides programming errors that disenfranchise voters, under-count communities for the census, …

Technological Due Process, Danielle K. Citron

Faculty Scholarship

Distinct and complementary procedures for adjudications and rulemaking lie at the heart of twentieth-century administrative law. Due process required agencies to provide individuals notice and an opportunity to be heard. Agencies could foreclose policy issues that individuals might otherwise raise in adjudications through public rulemaking. One system allowed focused advocacy; the other featured broad participation. Each procedural regime compensated for the normative limits of the other. Both depended on clear statements of reason.

The dichotomy between these procedural regimes has become outmoded. This century's automated decision-making systems collapse individual adjudications into rulemaking while adhering to the procedural safeguards of neither. …