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Saturday, August 03, 2019

Administrator bias and legal frameworks

I have posted a draft of an article entitled Bias in Regulatory Administration.  Comments welcome.

The larger questions of which this article is a part are not at all new:  How ought we to think about the sacred principle that We the People are entitled to an open-minded, neutral decisionmaking in administrative agency decisionmaking -- especially in the context of administrative adjudication, but even on occasion in rulemaking?  Should the principle be different in the regulatory context than in the traditional courtroom, given unique features of the administrative state?  Lon Fuller famously opined on this question in "Forms and Limits" and Judge Friendly's famous unpacking of the requirement of "some kind of a hearing" furthered helpfully the discussion in an earlier era.

Although my paper doesn't address, except in passing, this issue, there are some important reasons to reconsider the entire matter of administrator bias, both at the level of principle and of administration, given the rise and impact of machine-learning mechanisms in the regulatory administration context.  Discussions of algorithmic bias is all the rage, and rightfully so.  My hope is that we can tie together more ambitiously the deep questions underlying discussions of AI, its promise and pitfalls, to ubiquitous issues of bias, interest, and influence as they have arisen in the doctrinal context for a long while in administrative law.  That, in any event, is the more global question of which this paper is a small part.

Posted by Dan Rodriguez on August 3, 2019 at 01:40 PM in Article Spotlight, Daniel Rodriguez | Permalink



I am glad that it was somehow helpful and contributing to your research.

We are of course only relatively " doomed " ( not really in the plain meaning of it). I meant of course, we can't really reach perfection. The greater public typically, don't care much about legal and philosophical insights, but to live their lives, untouched and unharmed.

Moreover, it is very hard to exceed or understand the law and jurisprudence. Even very experienced lawyers, face difficulties, let alone laymen and the rest of the public and so forth.....Only judges typically, really exceed the right understanding.

So, such gap in perception of reality in legal terms, has always been around, rendering those things, sort of " doomed " situation,and are causing sensation of helplessness.


Posted by: El roam | Aug 3, 2019 5:26:25 PM

This is a very shrewd and helpful email, for which I am grateful. Yes, you are quite right that I rely on the traditional binary, and perhaps to the detriment of a more far-sighted and ambitious framing of the subject. I will want to think about your point more deeply. The larger point, and that is that there are tradeoffs no whatever how hard to dig doctrinally is something I agree with very much. Less convinced that we are doomed (given the role of Congress & the President, not to mention intra-institutional constraints on agencies). But, again, a wise insight for sure.

Posted by: Daniel B. Rodriguez | Aug 3, 2019 4:37:42 PM

Very interesting ( and refreshing ) Yet, and although I couldn't read everything here unfortunately, it seems that the respectable author of the post, treats bias as objective notion. I mean : an agency is rather fair, or biased in binary terms. But in reality, something else quite often happens:

Every decision of one agency, may cause, or is causing actually harm to one party ( whether biased or not ). Now, in subjective terms, and from the view of the harmed or inflicted party, biased or not, in objective terms, is not an issue. The issue is the narrow self interest. Being harmed. Being a victim (subjectively, and legitimately of course).

So, that notion proposed of pursuing " the goal of optimal bias rather than the goal of its elimination " is rather more rhetoric and " works on neutral ". In a way or other, we are doomed. For, greater public good or policy, shall always contradict or harm individuals and groups, with or without fairness or bias.

So, courts, that are totally out of this game. Having "no boss", no superiors, and are totally independent,bound only by the rule of law, provide for the time being, the best answer to such " doomed " and chaotic state of things.


Posted by: El roam | Aug 3, 2019 3:03:14 PM

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