Month: June 2022

Ranchordas on Empathy in the Digital Administrative State

Sofia Ranchordas (University of Groningen, Faculty of Law; LUISS) has posted “Empathy in the Digital Administrative State” (Duke Law Journal, Forthcoming) on SSRN. Here is the abstract:

Humans make mistakes. Humans make mistakes especially while filling out tax returns, benefit applications, and other government forms, which are often tainted with complex language, requirements, and short deadlines. However, the unique human feature of forgiving these mistakes is disappearing with the digitalization of government services and the automation of government decision-making. While the role of empathy has long been controversial in law, empathic measures have helped public authorities balance administrative values with citizens’ needs and deliver fair and legitimate decisions. The empathy of public servants has been particularly important for vulnerable citizens (for example, disabled individuals, seniors, and underrepresented minorities). When empathy is threatened in the digital administrative state, vulnerable citizens are at risk of not being able to exercise their rights because they cannot engage with digital bureaucracy.

This Article argues that empathy, which in this context is the ability to relate to others and understand a situation from multiple perspectives, is a key value of administrative law deserving of legal protection in the digital administrative state. Empathy can contribute to the advancement of procedural due process, the promotion of equal treatment, and the legitimacy of automation. The concept of administrative empathy does not aim to create arrays of exceptions, nor imbue law with emotions and individualized justice. Instead, this concept suggests avenues for humanizing digital government and automated decision-making through a more complete understanding of citizens’ needs. This Article explores the role of empathy in the digital administrative state at two levels: First, it argues that empathy can be a partial response to some of the shortcomings of digital bureaucracy. At this level, administrative empathy acknowledges that citizens have different skills and needs, and this requires the redesign of pre-filled application forms, government platforms, algorithms, as well as assistance. Second, empathy should also operate ex post as a humanizing measure which can help ensure that administrative mistakes made in good faith can be forgiven under limited circumstances, and vulnerable individuals are given second chances to exercise their rights.

Drawing on comparative examples of empathic measures employed in the United States, the Netherlands, Estonia, and France, this Article’s contribution is twofold: first, it offers an interdisciplinary reflection on the role of empathy in administrative law and public administration for the digital age, and second, it operationalizes the concept of administrative empathy. These goals combine to advance the position of vulnerable citizens in the administrative state.

Recommended.

Mayson on Personalized Law

Sandra G. Mayson (University of Pennsylvania Carey Law School) has posted “But What Is Personalized Law?” (University of Chicago Law Review Online, 2021) on SSRN. Here is the abstract:

In Personalized Law: Different Rules for Different People, Omri Ben-Shahar and Ariel Porat undertake to ground a burgeoning field of legal thought. The book imagines and thoughtfully assesses an array of personalized legal rules, including individualized speed limits, fines calibrated to income, and medical disclosure requirements responsive to individual health profiles. Throughout, though, the conceptual parameters of “personalized law” remain elusive. It is clear that personalized law involves more data, more machine-learning, and more direct communication to individuals. But it is not clear how deep these changes go. Are they incremental—just today’s law with better tech—or do they represent a change in the very nature of legal rules, as the authors claim?

This Essay aims to help clarify the concept of “personalized law” by starting from the nature of legal rules. Drawing on the scholarship of Frederick Schauer, it argues that all rules must generalize in some way, then offers a taxonomy of different forms of generalization. With the framework in place, it becomes clear that personalized law entails two shifts: (1) from rules that prescribe specific conduct toward rules that prescribe a social outcome, like a risk or efficiency target, and (2) toward greater ex ante specification of what rules require of individuals. Each shift has different practical and normative implications. Lastly, the Essay raises two potential costs of such shifts that Personalized Law does not address at length: the likely disparate racial impact of social-outcome rules driven by big data, and the possible loss of communal experience in shared-rule compliance.