The Contentious Issues of Governance by Algorithms

Abstract: The development of computerized tools that lead to decision-making processes which apply locally defined parameters poses many questions about democracy. These questions stem from our very conception of the state and its role, going beyond the boundaries of typical administrative law. According to a popular notion that permeates the practices of most executive branches in liberal political regimes, democratic concerns are now competing with managerial concerns. In order to analyze this idea, we must study the implementation of algorithms in administrative decision-making, underscoring both the changes to the characterization of administrative decisions and the questions raised about an administrative judicial review of litigation. To summarize a French administrative law judge's review so far, the judge began by assessing the legality of using algorithms in administrative procedures. Secondly, the judge reviewed the legality of making administrative decisions on the basis of an algorithm. Three issues now appear to be guiding the future of algorithm-based administrative decisions: (1) the security of legal transactions; (2) the compensation for harm or damage caused by the algorithms, and (3) the degree of in-depth review by the administrative judge.