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Sofia Ranchordás, Empathy in the Digital Administrative State, __ Duke L. J. __ (forthcoming 2022), available at SSRN.

Government, no less than the private sector, experiences both the pressures and the allure of digital technology and automation. New technology offers the promise and possibility of delivering services more efficiently, rapidly, and maybe equitably. But there is a distinct risk that, at least for some members of society, this new future provides even less service and fairness than the analog past.

It is that risk, and how we might confront it, that drives Sofia Ranchordás’ new article, Empathy in the Digital Administrative State. Looking specifically at the administrative state and its vast systems of decision making, Ranchordás contends that not only is “empathy” crucial in maintaining democracy and ensuring a system of just and evidence-based adjudication, but that empathy is actually declining with increased digitalization. Moreover, this decline most seriously impacts society’s vulnerable citizens. In Empathy, Ranchordás outlines the challenges faced by the vulnerable engaging with a digital and automated bureaucracy, reviews the existing literature on empathy in public administration, and offers ex post and ex ante empathy-based recommendations for improving the administrative state.

What precisely is the “empathy” that Ranchordás finds missing in the operation of the administrative state? She defines it as “the ability to acknowledge, respond [to] and understand the situation of others, including their challenges and concerns.” Thus, when facing a world in which not all citizens are equally positioned to engage with the digital administrative state and some individuals will be prone to committing mistakes or missing out on important information, Ranchordás believes that “empathy in government” can “close the gap” with “disconnected citizens.” But relying on empathy as a tool for the administrative state rightfully raises concerns about discretion exercised by government officials. Ranchordás recognizes this point but argues that the risks encountered with bureaucracies are increasingly those arising from our engagement with machines and not from our engagement with government officials. Furthermore, she contends that reliance on “empathy” as a tool in law and administration is not new. Ultimately, the article offers recommendations for ex ante and ex post incorporation of empathy into the digital administrative state.

On the ex ante side, governments are encouraged to both question and, where appropriate, limit the reliance on digital and automated engagement with government. Then-Commissioner of the Internal Revenue Service John Koskinen articulated this approach to technology developments in 2016 when he observed that although the IRS would be pursuing a range of innovations to enhance and improve taxpayer service, “[w]e recognize there will always be taxpayers who do not have access to the digital economy or who simply prefer not to interact with the IRS online. We remain committed to providing the services these taxpayers need.” Arguably too, recent reactions against proposed IRS reliance on third-party facial recognition technology to authenticate new online accounts, reflect related concerns. Although critiqued on the grounds of privacy and security, the proposed technology was also challenged for its likely impact on more vulnerable communities.

Ex post, Ranchordás encourages the administrative state to adopt “a duty to forgive and meaningfully assist citizens facing exceptional circumstances” which might include “severe illness, extreme poverty, or any personal challenge that can justify why a citizen is not able to act in a better way, defend their rights and interests, and comply with the law.” Certainly the more this approach is incorporated into a regime ex ante (for example, through use of multiple communication channels to reach individuals who may move location frequently, or through a legal provision granting individuals the right to appeal based on explicit categories of hardship) the less likely that discretion becomes an untenable power of the bureaucrats. But Ranchordás envisions ex post empathy in the administrative state that does “not amount to numerous individual exceptions that fully dismantle the efficiencies that automated systems may give rise to and create legal uncertainty.” Whether this balance can be achieved remains unclear.

Ranchordás’ interest in what happens to those in society who fail to thrive in the digital administrative state — those who make mistakes and miss opportunities to which they are entitled — resonates with earlier work that my co-author Shu-Yi Oei and I did in “Slack” in the Data Age. Our article considered the broader question of how increasingly ubiquitous data and new technological innovations now available to government and related enforcement activities renders everyone’s mistakes more visible but does so unevenly with the most vulnerable at the greatest and disproportionate risk of exposure. Here, Ranchordás takes aim specifically at the administrative state and its power to reduce some of the new risks facing the more vulnerable. How governments respond—and whether they can find a stable path forward with empathy—will shape our administrative systems in the age of digitalization and automation.

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Cite as: Diane Ring, What We Lose with Digitalization and Automation of the Administrative State—and How to Get it Back, JOTWELL (September 21, 2022) (reviewing Sofia Ranchordás, Empathy in the Digital Administrative State, __ Duke L. J. __ (forthcoming 2022), available at SSRN), https://tax.jotwell.com/what-we-lose-with-digitalization-and-automation-of-the-administrative-state-and-how-to-get-it-back/.