Ranchordas EMPATHY IN THE DIGITAL ADMINISTRATIVE STATE

EMPATHY IN THE DIGITAL ADMINISTRATIVE STATE
Sofia Ranchordás*
In Duke Law Journal (vol. 72, 2022, forthcoming)
Abstract
It is human to make mistakes. It is indisputably human to make mistakes while filling in 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 digitization 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 (e.g., disabled individuals, seniors,
underrepresented minorities, low income). 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, the ability to relate to others and understand a legal situation from multiple perspectives,
is a key value of administrative law which should be safeguarded in the digital administrative state. Empathy can contribute
to the advancement of procedural due process, equal treatment, and the legitimacy of automation. The concept of
administrative empathy does not aim to create arrays of exceptions, imbue law with emotions and individualized justice.
Instead, this concept suggests avenues for humanizing digital government and automated decision-making through the
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 decision-making remains human.
Drawing on comparative examples of empathic measures employed in the United States, the Netherlands, Estonia,
and France, the academic contribution of this Article is twofold: first, it offers an interdisciplinary reflection on the role of
empathy in administrative law and public administration for the digital age that seeks to advance the position of vulnerable
citizens; second, it operationalizes the concept of administrative empathy.
*
Full Professor of European and Comparative Public Law at the Faculty of Law of the University of Groningen
(The Netherlands) and Professor of Law, Innovation, and Sustainability at LUISS Guido Carlo (Italy). Many
thanks to Madalina Nicolai and Luna Aristei for the research assistance. I am grateful to Elif Bieber, Catalina
Goanta, Alessia Farrano, Nicolas Gabayet, Giovanni De Gregorio, Giuseppe Italiano, Yseult Marique, Aldo
Sandulli, Luisa Scarcella, Paloma Krõõt Tupay[…] for their insightful comments.
Electronic copy available at: https://ssrn.com/abstract=3946487

“if anyone says any of the following….that she’s oppressed and they feel her pain…
If anyone tells her she’s responsible for them being unemployed
If anyone tells her she doesn’t belong here and when are you leaving?
[…] You’ve really suffered, Yazz says, I feel sorry for you, not in a patronizing way, empathy, actually.” 1
INTRODUCTION
To err is human.2 To forgive used to be human, too. However, the digitization and
automation of government have eroded the empathic nature of the administrative state. 3
Existing explicit or implicit semblances of empathy, the cognitive process which allows people
to understand a situation from someone else’s perspective, are vanishing with mass-scale
optimization of government services and automated decision-making.4 Administrative law
frameworks which were designed for analog bureaucratic systems where the risk of abuse of
power lurked, do not fit the characteristics of digital government and automated decision-
making.5 In the digital administrative state, human discretion and legal empathy are not only
1
BERNARDINE EVARISTO, GIRL, WOMAN, OTHER 60 (2019).
2
Drawing on ALEXANDER POPE, AN ESSAY ON CRITICISM (1711) (“To err is human; to forgive, divine.”),
https://www.poetryfoundation.org/articles/69379/an-essay-on-criticism
3
Cary Coglianese, Administrative Law in the Automated State, 150 DAEDALUS 104, 105, 113 (2021) (arguing that
automation of the administrative state may outperform existing systems, but it also dehumanizes it). See also generally
Mireille Hildebrandt, Law as Information in the Era of Data-Driven Agency, 79 MODERN L. REV. 1 (2016).
Thomas M. Vogl, Cathrine Seidelin, Bharat Ganesh, Jonathan Bright, Smart Technology and the Emergence of
Algorithmic Bureaucracy: Artificial Intelligence in UK Local Authorities, 80 PUB. ADMINISTRATION REV. 946
(arguing that algorithms change the nature of bureaucracy and explaining that the roles of public administrators
are now imbricated with that of computational algorithms).
4
See, for instance, Madalina Busuioc, Accountable Artificial Intelligence: Holding Algorithms to Account, PUB.
ADMINISTRATION REV. (2021) at https://doi.org/10.1111/puar.13293; Emre Bayamlioglu, Contesting Automated
Decisions: A View of Transparency Implications, 4 EUR. DATA PROTECTION L. REV. 433 (2018). See, nonetheless,
Noortje de Boer & Nadine Raaphorst, Automation and discretion: explaining the effect of automation on how
street-level bureaucrats enforce, 1-21 PUBLIC MANAGEMENT REVIEW (Early Online, 2021),
https://www.tandfonline.com/doi/full/10.1080/14719037.2021.1937684 (showing that automation only decreases
discretion as currently perceived and arguing for moving beyond this concept). For a broader public administration
analysis of the implications of the use of digital technology in administrative decision-making, see Marc Bovens
& Stavros Zouridis, From Street-Level Bureaucrat to System-Level Bureaucracies: How Information and
Communication Technology Is Transforming Administrative Discretion and Constitutional Control, 62 PUB.
ADMIN. REV 174 (2002).
5
Coglianese supra note 3 at 105 and 113.

limited, they disappear because the law is automatically applied without any room for empathy,
regardless of the circumstances experienced by citizens. 6 This affects disproportionately
vulnerable citizens who are the most prone to erring and also those who before the automation
of government, benefited from the occasional empathy of street-level bureaucrats toward first-
time mistakes and oversights. 7 However, this problem has been largely overlooked or it has
only been studied in the context of disabilities law, partly because vulnerability is an elusive
concept which is simultaneously universal and particular. 8
Vulnerability before the government refers to both permanent disabilities (e.g., blindness)
and temporary but taxing circumstances such as extreme poverty or scarcity of essential
resources (e.g., time, food) which affect the ability of citizens to fully engage with
bureaucracy.9 Vulnerability includes thus old age, documented and undocumented disabilities,
6
Coglianese supra note 3 at 113.
7
Robin West, The Anti-Empathic Turn, in PASSIONS AND EMOTIONS: NOMOS LIII 243, 246 (James E. Fleming
ed., 2013) (“Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an
acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well”). For cognitive
aspects surrounding empathy, see Anna Spain Bradley, Cognitive Competence in Executive-Branch Decision
Making 49 CONN L. REV. 713 (2017). On empathic decisions issued by street-level bureaucrats and differences in
their application, see Ming H. Chen, Where You Stand Depends on Where You Sit: Bureaucratic Politics in
Federal Workplace Agencies Serving Undocumented Workers, 33 Berkeley J. & Employment & Labor L. 227
(2012). Street-level bureaucrats (including social welfare caseworkers) have been depicted negatively in the
public imaginary and much of human bureaucracy has been criticized in the literature for its lack of adaptability,
the incomprehension and hostility of many public servants. For a review of the literature and reflection between
the interaction between government and public, see generally BERNARDO ZACKA, WHEN THE STATE MEETS THE
STREET (2017) (discussing the complex moral decisions made by street-level bureaucrats).
8
Lourdes Peroni & Alexandra Timmer, Vulnerable groups: The promise of an emerging concept in European
Human Rights Convention law, 11 Int’l J. of Constitutional L. 1056, 1058 (2013) (“A central paradox of
vulnerability is that it is both universal and particular. Both of these features arise in the first place from our
embodiment as embodied beings we are all vulnerable, but we experience this vulnerability uniquely through our
individual bodies.”)
9
Martha Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition 20(1) YALE JOURNAL
OF LAW AND FEMINISM 1 (2008) (exploring the concept of vulnerability as a condition that can be temporary and
affect every individual both on a permanent or temporary basis. Vulnerability is defined here as “universal and
constant” an “inherent to human condition”). On the impact of scarcity of time, financial means, and food on
decision-making, see generally Sendhil Mullainathan & Eldar. Shafir, Scarcity: Why Having Too Little Means so
Much (2013).

low literacy, limited digital skills, tragic life events (e.g., the death of a child), and other
cognitive limitations.10 If to err is human, so is to be vulnerable. 11
This Article argues that empathy in government is not only a key value of administrative
law but it is also a necessary condition for the operationalization of justice, evidence-based
adjudication, and democracy in the digital administrative state. 12 This Article advances the
novel concept of administrative empathy which consists in the duty of public authorities to
gather multiple perspectives about citizens’ needs and ensure that the interactions between
citizens and government remain meaningful and inclusive in the digital administrative state. I
do not suggest that empathy should create room for individualized justice or regular
10
See Kat MacFarlane, Disability without Documentation FORDHAM L. REV. (forthcoming 2021),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3781221 (arguing for a documentation-free model “that
accepts an individual’s assessment of their disability and defers to their accommodation preferences); Lucy A.
Jewel, The Biology of Inequality 95 DENV. L. REV. 609, 611 (2018) (explaining that social outcomes are also
influenced by “living in stressful disadvantaged environments with little social security and control over one's
individual circumstances”); Daniel H. Lende, Poverty Poisons the Brain, 36 ANNALS ANTHROPOLOGICAL PRAC.
183 (2012) (introducing a critical understanding of how lower socioeconomic status influences health, intelligence
and academic success in a way that transcends the simplistic cause-effect approach); Michael M Marmot, Status
Syndrome 150 (2004) (arguing that disadvantaged people live shorter lives and suffer from worse mental and
physical health than more advantaged individuals); SENDHIL MULLAINATHAN & ELDAR SHAFIR, SCARCITY: THE
NEW SCIENCE OF HAVING LESS AND HOW IT DEFINES OUR LIVES (2014) (explaining how scarcity can capture a
person’s mindset and alter their behaviour by pinning their focus on what they feel missing from their lives).
11
Fineman supra note 6 at 8.
12
ANTHONY M. CLOHESY, POLITICS OF EMPATHY 1 (2013) (“empathy, that capacity of the imagination that resides
in everyone, is a necessary condition for justice, democracy and ethics, a necessary condition for us to live well
in the world.”). There are multiple debates on the definition of empathy, particularly in the field of psychology
where most studies on empathy have been conducted. Sarah H. Konrath, Edward H. O’Brien, and Courtney Hsing,
Changes in Dispositional Empathy in American College Students Over Time: A Meta-Analysis, 15 Personality
and Social Psychology Review 180, 181 (2011).
Some scholars see empathy as a cognitive mechanism, see generally Borke, H. (1971). Interpersonal perception
of young children: Egocentrism or empathy? Developmental Psychology, 5, 263-269. However, other scholars
perceive it as an affective construction, see generally, e.g., C. Daniel Batson, Prosocial motivation: Is it ever truly
altruistic. Advances in Experimental, 20 Social Psychology 65 (1987). John Deigh, Empathy, Justice, and
Jurisprudence, 49 THE SOUTHERN JOURNAL OF PHILOSOPHY 73, 79-80 (2011); Maksymilian Del Mar, Imagining
by feeling: a case for compassion in legal reasoning, 13(2) INTERNATIONAL JOURNAL OF LAW IN CONTEXT 143
(2017) (arguing that compassion can help judges understand better the position of defendants and that “imaging
by feeling” is not a threat to the rule of law but a condition of it); Coglianese, supra note 3, at 114 (“We already
know from extensive research on procedural justice that the way that government treats members of the public
affects their sense of legitimacy in the outcomes they receive. To build public trust in an automated state,
government authorities will need to ensure that members of the public still feel a human connection.”); Thomas
B. Colby, In Defense of Judicial Empathy, 96 MINN. L. REV. 1944, 1947 (2012) (arguing that a judge “can neither
craft nor employ legal doctrine competently if she is not willing and able to understand the perspectives of, and
the burdens upon, all of the parties.”); West, supra note 2, at 246 (“And, adjudication does proceed largely, albeit
not entirely, by analogy. For that reason alone, some level of empathic ability, one might think, is a requisite of
any judging in a common law or case-method system that’s worthy of the name. Excellent judging requires
empathic excellence”).

exceptions.13 Instead, empathy should operate at two levels to advance the legitimacy of
government.14 First, empathy should play a role ex ante, i.e., before administrative adjudication
takes place, in the decision of whether or not to automate public services and in the design of
digital government. This can ensure that government platforms are accessible, inclusive and
understanding of the different needs of the citizenry. 15 Vulnerable citizens are not only affected
by the opacity of automated decision-making but they are also at risk of not applying for the
benefits they are entitled to, making more administrative mistakes, missing deadlines or being
profiled as fraudsters due to their inability to engage with digital government. 16 At this level,
administrative empathy can operate ex ante as a guideline for the design of digital government,
helping to determine what should be automated and how, as well as what kind of assistance
should be provided to vulnerable citizens.17
Second, empathy should operate ex post, i.e., after administrative adjudication takes place,
when citizens make mistakes and fail to exercise their rights. As an ex post measure,
administrative empathy should require public authorities and, under more limited conditions,
courts and administrative tribunals deciding on appeals, to gather additional information on all
relevant perspectives which may have been ignored in earlier stages by an automated system
13
For a thorough analysis of the balance between general and individualized justice in administrative law, see
generally Jefferey M. Sellers, Regulatory Values and the Exceptions Process, 93 Yale L. J. 938 (1983).
14
On digital government and legitimacy, see generally Danielle J. Citron & Ryan Calo, The Automated
Administrative State: A Crisis of Legitimacy, 70 EMORY L.J. 797 (2021) (offering a thorough analysis of the
legitimacy deficit of the automation of government).
15
See also Tiago Carneiro Peixoto, Kai Kaiser, Digital Government : Minding the Empathy, World Bank Blogs
(January 30, 2020), at https://blogs.worldbank.org/governance/digital-government-minding-empathy-gap (last
accessed on October 14, 2021).
16
Sofia Ranchordás, Connected but Still Excluded? Digital Exclusion Beyond Internet Access, in THE CAMBRIDGE
HANDBOOK OF LIFE SCIENCES, INFORMATIVE TECHNOLOGY AND HUMAN RIGHTS (M. Ienca et. al., forthcoming
2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3675360 (arguing that digital inequality denies
vulnerable citizens adequate access to the digital government).
17
See Katie Deighton, Some Companies Make Their Websites More Elderly-Friendly, WSJ (Oct. 24, 2020, 3:59
pm), https://www.wsj.com/articles/some-companies-make-their-websites-more-elderly-friendly-11603569592
(“Seniors will quickly abandon a company website that is inaccessible to them” due to deteriorating vision and
dexterity.); see also Mehdi Asgarkhani, The Reality of Social Inclusion Through Digital Government, 25
JOURNAL OF TECHNOLOGY IN HUMAN SERVICES 127, 137 (2008) (arguing that digital government initiatives can
be undermined by the digital divide, which in turn is linked to “the state of the ICT industry and electronic
readiness (e-readiness) within countries, organisations, and societies”).

or which can be attributed to deficient engagement with digital technology. This can help
guarantee that vulnerable citizens are not excluded from the exercise of their rights because
they were unable to engage critically with digital government. This Article argues that
administrative empathy can contribute to the material advancement of procedural due process,
equal treatment, and the legitimacy of the administrative state in governments immersed in
efficiency narratives. 18
This Article’s key arguments are particularly relevant in light of two recent scandals in the
United States and The Netherlands that showcase how the automated application of
administrative law was not only unfair to vulnerable citizens but also produced inaccurate
results.19 The Michigan Integrated Data Automated System (MiDAS) which aimed to flag
unemployment fraud, was more likely to commit injustices than a human decision-maker
because with its 93% error rate, it interpreted small mistakes as signs of fraud. 20 Similarly, in
the Netherlands, between 2011-2021, 26, 000 Dutch families were mistakenly labeled as
fraudsters by sets of algorithms used by the tax authorities. 21 In the so-called “Dutch Childcare
Benefits scandal” (toeslaggenaffaire) which ultimately led to the fall of the government in
January 2021, public authorities reacted to simple oversights or mistakes (e.g., failure to report
small income changes) with severe sanctions (e.g., obligation to repay all received benefits
18
See Michael E. Serota & Michelle Singer, Veterans’ Benefits and Due Process 90 NEB. L. REV. 388 (2013)
(arguing that the long-drawn delays in adjudicating claims for disability benefits deprive veterans of the fair
adjudication to which they are entitled).
19
Drawing on John’s Rawls argument that law and underlying justice should be cleansed of emotions so that
reason and justice prevail, see generally JOHN RAWLS, A THEORY OF JUSTICE: REVISED EDITION 206-207 (2d ed.
1999); Brenner Fissell, Modern Critiques of Judicial Empathy: A Revised Intellectual History, 2016 MICH. ST. L.
REV. 817, 834-835 (2016) (“If any affective faculties are allowed to enter in, this makes the adjudicator's "heart"
a new source from which law is derived. This brings in unauthorized, democratically illegitimate, and
particularistic – often elitist – considerations into law, which ought to be common and generally shared. Of course,
this also brings in a potential for inconsistency, given that judges' experiences and affects will be different.”).
20
Paul Egan, Michigan Integrated Data Automated System Experiences 93 Percent Error Rate During Nearly
Two Years of Operation, GovTech (July 31, 2017) at https://www.govtech.com/data/michigan-integrated-data-
automated-system-experiences-93-percent-error-rate-during-nearly-two-years-of-operation.html
21
See Jon Henley, Dutch Government Faces Collapse over Child Benefits Scandal, The Guardian (January 14,
2021) at https://www.theguardian.com/world/2021/jan/14/dutch-government-faces-collapse-over-child-benefits-
scandal .

with interest within a short period of time). 22 Both in the cases of MiDAS and the Dutch
Childcare scandal, automated systems did not consider whether citizens had the personal
conditions to make different choices, ignoring the devastating effect of poverty, social
isolation, and the negative impact of digital illiteracy.23
This Article acknowledges that the role of empathy in law is controversial. 24 Nevertheless,
two decades of literature on compassion, empathy and the rule of law have demonstrated that
empathy cannot be reduced to emotions. 25 Instead, over the last decades, administrative law
and public administration scholars have consistently argued that empathy is an important
administrative value and a condition to regulatory excellence. 26 In addition, recent literature
22
This scandal drove thousands of citizens into bankruptcy and gave rise to many personal tragedies. Citizens felt
victims of a witch hunt, ignored by tax authorities when trying to prove they had not tried to commit fraud, and
their appeals were systematically ignored by Dutch courts. See Senay Boztas, The Childcare Benefits Scandal:
Voices of the Victims, DutchNews (January 15, 2021) (“For a mother with three children, the effects were
devastating. ‘My total debt was €92,000, I went into a debt relief programme, was called a fraudster. I was isolated,
I didn’t work for two years, I had to have psychiatric help and my youngest daughter threatened to commit
suicide,’ she says.’ She had bailiffs at the door trying to take her son’s car, she says, she was penalised because
her son used his study grants to help her pay the rent, and her story charts more than a decade of ‘mental abuse’
– from her own government.’
https://www.dutchnews.nl/news/2021/01/the-childcare-benefits-scandal-voices-of-the-victims/ Anna Holligan,
Dutch PM Rutte Government Resigns over Child Welfare Fraud Scandal, BBC News (January 15, 2021),
https://www.bbc.com/news/world-europe-55674146 (last accessed on August 9, 2021); see also the parliamentary
investigation of this case, Commissie Van Dam, Verslag Ongekend onrecht [Unprecedented Unfairness] Tweede
Kamer (Dec. 17, 2020), https://www.tweedekamer.nl/nieuws/kamernieuws/eindverslag-onderzoek-
kinderopvangtoeslag-overhandigd [in Dutch] (last accessed on August 10, 2021).
23
See generally ANNE-GREET KEIZER, WIL TIEMEIJER & MARK BOVENS, WHY KNOWING WHAT TO DO IS NOT
ENOUGH: A REALISTIC PERSPECTIVE ON SELF-RELIANCE (2019) (analyzing the importance of limited mental
capacity and gap between “knowing” what one’s rights are and what procedures need to be followed and what
needs to be done to exercise them. This book discusses the concept of “self-reliance”); see also Henderson v.
Shinseki, 562 U.S. 428 (2011); Joan Biskupic, Supreme Court allows flexibility for ill veterans, USA TODAY (Mar.
3, 2011), https://www.pressreader.com/usa/usa-today-international-edition/20110303/281698316246084 (“They
said the increase in traumatic stress and other psychological injuries from the wars in Iraq and Afghanistan would
likely cause more veterans to miss deadlines”).
24
Clohesy supra note _at 1 (“empathy…is a necessary condition for justice, democracy…However, as we look
at the world in the early years of the twenty-first century , we witness that our efforts to imagine what it is like
to be someone else thwarted by hate, resentment and suspicion.”).
25
Mariglynn Edlins, Developing a Model of Empathy for Public Administration, 43 Admin. Theory & Praxis 22
(2021) (exploring the concept of empathy within public administration and articulating a method of incorporating
empathy into public service in a way that improves the experience of both the empathy-giver and the empathy-
receiver). Stephanie Dolamore, Detecting Empathy in Public Organizations: Creating A More Relational Public
Administration, 43 ADMIN. THEORY & PRAXIS 58 (2021) (critiquing the absence of tools that support the
assessment of empathy in public organizations and offering a framework to detect an organizational culture of
empathy. On the importance of emotions and the exploration of empathy as a cognitive process, see MARTHA C.
NUSSBAUM, UPHEAVALS OF THOUGHT: THE INTELLIGENCE OF EMOTIONS (2001).
26
Cary Coglianese, Listening, Learning, and Leading: A Framework for Regulatory Excellence 73 (Penn Program
on Regulation, Alberta Energy Regulator 2015), https://www.law.upenn.edu/live/files/4946-
pprfinalconvenersreport.pdf (discussing the core attributes of regulatory excellence, which involves

and policy reports have demonstrated that the digitization of forms and government services
wrongly assume that all citizens have average literacy and digital skills. 27 The challenges faced
by seniors in the United States trying to register online for a COVID-19 vaccine, illustrate the
need for a more inclusive approach to digital government. 28
In terms of legal methodology, this Article is not strictly comparative but it draws on
examples from four jurisdictions (United States, Estonia, France, and The Netherlands) which
are at comparable stages of economic development, digitization and automation and thus face
similar challenges.29 Despite the many differences between these countries, vulnerable citizens
in these Western jurisdictions tend to experience similar problems with automation: limited
digital literacy, racial biases, profiling with disregard for their individual challenges. 30 These
“demonstrating empathy and building trust across all segments of society, showing respect, and treating people
with dignity even when making decisions that adversely affect their interests.”); Stephanie Dolamore, Detecting
Empathy in Public Organizations: Creating A More Relational Public Administration, 43 ADMIN. THEORY &
PRAXIS 58 (2021); Lisa A. Zanetti, Cultivating and Sustaining Empathy as a Normative Value in Public
Administration, in GOVERNMENT IS US 2.0 76 (Cheryl Simrell King, ed., 2011).
27
On this argument as well as on the contrast between the concept of “vulnerable citizen” and average citizen,
see Sofia Ranchordás & Luisa Scarcella, Automated Government for Vulnerable Citizens: Intermediating Rights,
30 WILLIAM & MARY BILL OF RIGHTS JOURNAL _ (forthcoming 2021), at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3938032 ; Michael T. Nietzel, Low Literacy Levels Among
U.S. Adults Could be Costing the Economy $2.2. Trillion a Year, FORBES (Sep. 9, 2020),
https://www.forbes.com/sites/michaeltnietzel/2020/09/09/low-literacy-levels-among-us-adults-could-be-costing-
the-economy-22-trillion-a-year/?sh=2b6627c44c90 (last accessed on August 11, 2021).
28
The hesitancy to get vaccinated is explained by several factors, including education, digital literacy, and
education, see generally Jeffrey V. Lazarus, Katarzyna Wyka, Lauren Rauh, Kenneth Rabin, Scott Ratzan,
Lawrence O. Gostin, Heidi J. Larson & Ayman El-Mohandes, Hesitant or Not? The Association of Age, Gender,
and Education with Potential Acceptance of a COVID-19 Vaccine: A Country-level Analysis, 25 J. OF HEALTH
COMMUNICATION 799 (2020).
29
In the Netherlands, the Dutch Council State, an institution which functions on the one hand as an advisory body
to the Parliament and on the other, has a judicial division which functions as the highest administrative, has
suggested adding a new principle of good administration: the principle of meaningful administrative interaction
which could “slow down the fast pace of the digitization process in the country and guarantee that Dutch citizens
still have the opportunity to have human contact when it matters. Raad van State [Dutch Council of State],
Ongevraagd advies over de effecten van de digitalisering voor de rechtsstatelijke verhoudingen. [Unsolicited
Opinion on the Effects of Digitizing Constitutional Relations] Kamerstukken II 2017/2018, 26643, nr. 557 [in
Dutch] at https://www.raadvanstate.nl/@112661/w04-18-0230/. In France, the Macron Administration has also
sought to promote greater public trust in digital government through new legislative and policy measures. This
has resulted in the adoption of the so-called “right to err” which allows French citizens to make one administrative
mistake in their lifetime without any legal consequences as long as they acted in good faith, LOI n° 2018-727 du
10 août 2018 pour un Etat au service d'une société de confiance [Law 2018-727 of August 10, 2018 on the
Government Reform Act for a Trust-Based Society], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE
[OFFICIAL GAZETTE OF FRANCE], Aug. 11, 2018, Art. L. 312-3.
30
For an analysis of the central issues of the digital administrative state in France, see generally Jean-Bernard
Auby, Le droit administratif face aux défis du numérique, 15 ACTUALITE JURIDIQUE DROIT ADMINISTRATIF 835
(2018) at https://documentation.le04.fr/index.php?lvl=notice_display&id=30765

examples aim to not only compare the resemblances between these countries but also contrast
the different national legal measures in order to better flesh out the concept of administrative
empathy. While both vulnerability and empathy are fundamentally human, the role of public
authorities and courts in the practical exercise of empathy for the protection of vulnerable
citizens is viewed differently in the jurisdictions under analysis (for example, with reluctance
in France).31
This Article contributes to scholarly debates on algorithmic biases, discrimination, and
algorithmic accountability and judicial demands for rethinking the role of the digital
administrative state. 32 To the literature on compassion and law, it adds an evidence-based
reflection on the significance of empathy in administrative law and offers concrete suggestions
on how to operationalize empathy in the digital administrative state. 33
31
Cedric Meurant, La bienvieillance du juge administrative ‘a l’ egard des parties 111 in LA BIENVEILLANCE EN
DROIT PUBLIC (Mare & Martin, eds., 2020) (“dans le systeme juridique francais, le juge doit se borner a trancher
le litiged define par les parties…le juge n’est effectivement que la “bouche” de la loi…la bienveillance du juge
ne devrait pas exister.”)
32
See generally, e.g., Paul Schwartz, Data Processing and Government Administration: The Failure of the
American Legal Response to the Computer, 43 HASTINGS L.J. 1321, 1322 (1992); Danielle Keats Citron, Open
Code Governance, 49 U. OF CHI. LEGAL FORUM 355, 371 (2008); Danielle Keats Citron, Technological Due
Process, 85 WASH. U. L REV. 1249, 1301-13 (2008); Solon Barocas & Andrew D. Selbst, Big Data’s Disparate
Impact, 104 CAL. L. REV. 671; VIRGINIA EUBANKS, AUTOMATING INEQUALITY: HOW HIGH-TECH TOOLS PROFILE,
POLICE, AND PUNISH THE POOR 180-188 (2018); Jennifer Cobbe, Administrative Law and the Machines of
Government: Judicial Review of Automated Public-Sector Decision-Making, 39 LEGAL STUDIES 636 (2019). Cary
Coglianese, Administrative Law in the Automated State, 150 DAEDALUS 104, 113 (Professor Coglianese has suggested
that “empathy [in the automated administrative state] demands that administrative agencies provide opportunities
for human interaction and for listening and expressions of concern.”)
33
On compassion and law and empathy and the law, see Kristin B. Gerdy, Clients, Empathy, and Compassion:
Introducing First-Year Students to the “Heart” of Lawyering, 87 NEB. L. REV. 1 (2008); William D. Casebeer,
Identity, Culture and Stories: Empathy and the War on Terrorism, 9 MINN. J. L. SCI. & TECH. 653 (2008); Claire
A. Hill, Introduction to the Symposium: Self and Other: Cognitive Perspectives on Trust, Empathy and the Self,
9 MINN. J. L. SCI. & TECH. 637 (2008); Richard Warner, Empathy and Compassion, 9 MINN. J. L. SCI. & TECH.
813 (2008); Marc D. Falkoff, Conspiracy to Commit Poetry: Empathetic Lawyering at Guantanamo Bay, 6
SEATTLE J. SOC. JUST. 3 (2007); Sharisse O’Carroll, Empathy, Courage and Diligence: Three Things I Wish I’d
Learned in my Law School Ethics Course, 17 PROF. LAWYER 24 (No. 1 2006); Amnon Reichman, Law, Literature,
and Empathy: Between Withholding and Reserving Judgment, 56 J. LEGAL EDUC. 296 (2006); Jody Lynee
Madeira, Recognizing Odysseus’ Scar: Reconceptualizing Pain and its Empathic Role in Civil Adjudication, 34
FLA. ST. U. L. REV. 41 (2006); Jody Lynee Madeira, Regarding Pained Sympathy and Sympathy Pains: Reason,
Morality, and Empathy in the Civil Adjudication of Pain, 58 S. C. L. REV. 415 (2006); Craig Haney, Condemning
The Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathic Divide, 53
DEPAUL L. REV. 1557 (2004); Abbe Smith, Too Much Heart and Not Enough Heat: The Short Life And Fractured
Ego of the Empathic, Heroic Public Defender, 37 U.C. DAVIS L. REV. 1203 (2004); Susan Nauss Exon, The Best
Interest of the Child: Going Beyond Legalize to Empathize with a Client’s Leap of Faith, 24 J. JUV. L. 1 (2003-
04); Laurel E. Fletcher & Harvey M. Weinstein, When Students Lose Perspective: Clinical Supervision and the
Management of Empathy, 9 CLINICAL L. REV.135 (2002-03); V. Pualani Enos & Lois H. Kanter, Who’s Listening?
Introducing Students to Client-Centered, Client-Empowering, and Multidisciplinary Problem-Solving in a

This Article proceeds in four parts. Part I provides a brief overview of the challenges faced
by vulnerable citizens in the digital administrative state and explains why digitization and
automation exacerbate longstanding problems such as bureaucratic hurdles, red tape, and
mistrust of government.
Part II considers the general role of empathy in law and public administration, reviewing
existing literature and case law on empathic legal interpretation and judicial lawmaking.
Empathy, compassion, sympathy, and pity are the source of semantic confusion which have
undergone significant changes over time and context.34 This part also reflects upon the changes
introduced by automation.
Part III analyzes two recent comparative examples which illustrate the gradual
disappearance of empathy in the digital administrative state: the Dutch Childcare Benefits
scandal and MiDAS. This analysis focuses on social benefits since this is an area which has
been heavily digitized and automated in most Western countries not only to control eligibility
of applicants but also to detect fraud. Moreover, social benefits provide a good illustration of
the dehumanization of government, the stigmatization of poverty, and the disappearance of
room for empathy in the digital administrative state. 35
Clinical Setting, 9 CLINICAL L. REV. 83 (2002-03); Scott E. Sundby, The Capital Jury and Empathy: The Problem
of Worthy and Unworthy Victims, 88 CORNELL L. REV. 343 (2002-03); Rachel D. Godsil, Expressivism, Empathy
And Equality, 36 U. MICH. J. L. REFORM 247 (2002-03).
34
ADAM SMITH, THE THEORY OF MORAL SENTIMENTS (R. P. HANLEY ED., PENGUIN BOOKS 250TH ANNIVERSARY
2010) (1759) (arguing that human beings are not only driven by self-interest, but also by a sense of sympathy,
which resonates with our contemporary understanding of empathy); MARTHA NUSSBAUM, UPHEAVALS OF
THOUGHT: THE INTELLIGENCE OF EMOTIONS 1 (2001) (construing “emotions as essential elements of human
intelligence, rather than just as supports or props for intelligence” and arguing that if emotions “contain in
themselves an awareness of value or importance, they cannot, for example, easily be sidelined in accounts of
ethical judgment, as so often they have been in the history of philosophy”).
35
See Ed Pilkington, Digital dystopia: how algorithms punish the poor, THE GUARDIAN (Oct. 14, 2019, 10.00
BST), https://www.theguardian.com/technology/2019/oct/14/automating-poverty-algorithms-punish-poor (“Vast
sums are being spent by governments across the industrialized and developing worlds on automating poverty and
in the process, turning the needs of vulnerable citizens into numbers, replacing the judgment of human
caseworkers with the cold, bloodless decision-making of machines”); see also Philip Alston (the Special
Rapporteur on extreme poverty and human rights), Report of the Special rapporteur on extreme poverty and
human rights, ¶ 72, U.N. DOC. A/74/48037 (Oct. 11, 2019) (“as humankind moves, perhaps inexorably, towards
the digital welfare future it needs to alter course significantly and rapidly to avoid stumbling zombie-like into a
digital welfare dystopia. Such a future would be one in which: unrestricted data matching is used to expose and
punish the slightest irregularities in the record of welfare beneficiaries (while assiduously avoiding such measures
in relation to the well-off”); Brief by the United Nations Special Rapporteur on extreme poverty and human rights

Part IV explores the concept of administrative vulnerability and offers concrete suggestions
for its implementation, including the duty to “forgive” excusable mistakes, limited but
significant revisions of administrative procedures, channels for additional information and
assistance to vulnerable citizens, and the redesign of digital government for greater user-
friendliness. This Part draws inspiration from different recent legislative, judicial, and
institutional measures adopted in Estonia, the Netherlands, and France.
Administrative empathy as a concept does not aim to not to re-humanize the digital
administrative state, particularly at a time when empirical evidence suggests that humans are
becoming less empathic than previous generations and “humans-in-loop” do not take
meaningful actions. 36 Rather, administrative empathy aims to help rethink the design of
bureaucracy in the digital administrative state and expose the limitative role of vulnerability on
citizens’ abilities to exercise their rights.
I. BUREAUCRACY, THE DIGITAL ADMINISTRATIVE STATE AND VULNERABLE CITIZENS
In the last decades, government has become increasingly digital. However, digital tools are not a
panacea for all citizens and automation can add a new layer of bureaucracy to an already complex
system, exacerbating well-known problems of the administrative system.37 This Part first introduces
these challenges and then explains the central paradoxes of the digital administrative state for the sake
as Amicus Curiae Supporting Respondent, RBDHA 5 februari 2020, c/09/550982/HA ZA 18/388 (NJCM c.s./De
Staat der Nederlanden) (Neth.),
https://www.ohchr.org/Documents/Issues/Poverty/Amicusfinalversionsigned.pdf.
36
Sarah H. Konrath, Edward H. O’Brien, and Courtney Hsing, Changes in Dispositional Empathy in American
College Students Over Time: A Meta-Analysis, 15 Personality and Social Psychology Review 180, 181 (2011).
37
Emile Marzolf, Des pistes pour aider les plus vulnerables face a la dematerialization du service public, Acteurs
Publics (October 14, 2021) at https://acteurspublics.fr/articles/des-pistes-pour-aider-les-plus-vulnerables-face-a-
la-dematerialisation-du-service-public (summarizing the findings of a report of the Observatoire de l’ethique
publique which pointed out that digital government amounts to double layers of bureaucracy for the most
vulnerable citizens in France, namely immigrants, minors, and citizens on welfare).

of this article. The “digital administrative state” is defined here as a system where administrative
agencies and public authorities in general rely upon digital government tools (e.g., government
platforms, smartphone applications, digital identities, pre-filled online application forms) and
automated systems (e.g., machine-learning or actuarial systems).38 This part of the article delves into
the specific problems of the digital administrative state, explaining why vulnerable citizens are being
left behind, are more prone to making administrative mistakes with important legal consequences (e.g.,
denial of benefits, profiling as fraudsters, sanctions), and face great difficulty in exercising their rights.
A. The Weight of Bureaucracy
1. Introduction
Administrative law is often associated with the work of agencies often located in the
executive branch of government and in charge of the day-to-day governing of the most
important sectors of the economy (e.g., telecommunications, Internet, securities, agriculture,
consumer protection).39 However, historically, the core functions of administrative law include
the organization of public authorities and their bureaucracies, prevention of abuses of power
by public authorities, and the protection of individual rights. 40 The French model of
administrative law regards this field of law as a separate and distinct set of rules and courts
38
The study of the implications of digitization for constitutional law have been more thoroughly studied than
those for administrative law. However, the digital administrative state is part of this broader phenomenon, see
Giovanni De Gregorio, The rise of digital constitutionalism in the European Union, 19 International Journal of
Constitutional Law 41, 57 (2021) (“This situation also concerns the relationship between online platforms and
public actors. Governments and public administrations usually rely on big tech companies, for example to offer
new public services or improve their quality through digital and automated solutions.”)
39
See generally WILLIAM F. FOX, UNDERSTANDING ADMINISTRATIVE LAW (2012) (chapter 1 in particular
discusses the key functions of US Administrative Law).
40
See Marshall E. Dimock, Administrative Law and Bureaucracy, 292 ANNALS OF THE AMERICAN ACADEMY OF
POLITICAL AND SOCIAL SCIENCE 57, 57-60 (1954); see generally Francesca Bignami, Comparative Administrative
Law 145 in THE CAMBRIDGE COMPANION TO COMPARATIVE LAW (Mauro Bussani and Ugo Mattei eds., 2012).

which are not primarily designed to protect citizens against public authorities but rather to
convey rules on how to organize government.41 In French administrative law, public authorities
are traditionally empowered to take all necessary measures to pursue the public interest, under
strict guarantees that all citizens are treated equally and neutrally. 42 The German model of
administrative law, particularly influential and incorporated throughout continental Europe,
emerged later and emphasized the protection of citizens’ rights before government.43 Contrary
to many jurisdictions on each side of the Atlantic, the U.S. model of administrative law is not
44
directly based on the French or German models of administrative law. Nevertheless, this
Article addresses concerns that are shared by these administrative legal systems: the weight of
bureaucracy on vulnerable populations; the tension between administrative law as a guarantee
of rights and bureaucracy; the conflict between regulating in abstract administrative values and
accounting for individual needs; and safeguarding the human character of administrative law
in the digital administrative state. 45 The underlying functions of each system, the role of the
41
For the first well-known and influential account of French Administrative law in English and how it
compares to common law, see generally ALBERT V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE
CONSTITUTION (1915, 8th ed.). For an overview of the French administrative law system from a comparative
perspective, see generally Lionell Neville Brown, John Bell, Jean-Michel Galabert, French Administrative Law
(1998) (describing the central aspects of the French administrative law system); on the difference between the
French approach to administrative law and common law, including a modern discussion of AV Dicey’s work on
French administrative law, see Mark D. Walters, Public Law and Ordinary Legal Method: Revisiting Dicey’s
Approach To ‘Droit Administratif 66 The University of Toronto Law Journal 53, 54, 67-68 (2016); see also
Caroline Expert-Foulquier. Is French Administrative Justice a Problem-Solving Justice? 14 Utrecht Law
Review 40, 40-3 (2019) DOI: http://doi.org/10.18352/ulr.470 (discussing the approach of French public
authorities and courts to problem solving)
42
Francesca Bignami, Comparative Administrative Law 145, 146-8 in THE CAMBRIDGE COMPANION TO
COMPARATIVE LAW (Mauro Bussani and Ugo Mattei eds., 2012
43
Susan Rose-Ackerman, American Administrative Law under Siege: Is Germany a Model?, 107 Harvard L. Rev.
1279, 1281 (1994) (“The German public law system focuses mainly on the protection of individual rights against
the state, rather than the oversight of executive processes.”). Moshe Cohen-Eliya & Iddo Porat, Constitutional
law and proportionality: the administrative origins of constitutional rights and how they shaped global
constitutionalism 103, 113 in Proportionality: New Frontiers, New Challenges (Vicki Jackson & Mark Tushnet,
eds., 2018) (“the German model of administrative law…has been probably the most influential in Europe (it was
incorporated in Austria, Portugal, Sweden, Finland, the Czech Republic, Poland, Spain, Switzerland…and
Estonia.”).
44
. Susan Rose-Ackerman, American Administrative Law under Siege: Is Germany a Model?, 107 Harvard L.
Rev. 1279, 1281 (1994) (“Germany and the United States diverge sharply…in in the external constraints they
impose on high-level bureaucracies.”)
45
Carol Harlow, Global Administrative Law: The Quest for Principles and Values, 17 Eur. J. of Int’l L. 187, 211
(2006) (“There is a degree of willful blindness… in the belief that increased doses of Western-style bureaucracy
or due process necessarily benefits citizens; to the contrary, the adjudicative methods dear to economic liberals
are designedly biased to benefit those who can afford to use them.”).

judiciary, and perceptions regarding good administration and good governance are important
to help us understand a system’s willingness to incorporate notions of empathy. 46
Nowadays, digital government and automation are expected to assist public authorities,
optimizing benefit applications, reducing decision-making delays, and bring citizens and
governments closer through 24/7 communication, smartphone applications, and platforms. 47
The plea for digital technology and the automation of government decision-making is
explained on the one hand by the push for government cuts, cost-benefit analyses, and
innovation narratives and on the other by the need to address the inherent complexity of modern
administrative systems and their heavy and hierarchical bureaucratic machines.
Red tape, delays, inconsistent rules, incomprehensible language and procedures regularly
confuse citizens and dissuade them from exercising rights they are entitled to. 48 In 2021, the
media reported that thousands of citizens gave up booking a COVID-19 vaccine partially due
to the complexity of the booking system. 49 Limited digital literacy and misinformation were in
46
O.P. Dwivedi, On Common Good and Good Governance: An Alternative Approach 35, 43 in Better Governance
and Public Policy (Dele Olowu & Soumana Sako, eds., 2002) (“Recognition of the moral dimension of governance
raises concerns for improving the conduct of public service and government…And yet that moral tone is only one
of several prerequisites of good governance. A broader list of values includes (a) Democratic values—equality,
empathy, and tolerance for cultural diversity.”).
47
See Carol Harlow and Richard Rawlings, Proceduralism and Automation: Challenges to the Values of
Administrative Law, in THE FOUNDATIONS AND FUTURE OF PUBLIC LAW 275, 280 (E Fisher, J King and A Young
eds., 2019); See also Christopher DeMuth, Can the Administrative State be Tamed?, 8(1) JOURNAL OF LEGAL
ANALYSIS 121, 122 (2016) (explaining that high technology, among other facts, has caused the growth of
administrative law to the extent that “it is seriously imposing on private rights and freedoms and impeding the
vitality of our government, economy, and society”).
48
See generally Barry Bozeman, A Theory of Government “Red Tape”, 3 J. of Pub. Administration Res. & Theory
273 (1993) (discussing the concept of red tape and the negative implications of bureaucratic rules, in particular
how certain rules may help some citizens but hurt others); WENDY WAGNER, INCOMPREHENSIBLE! (2019)
(analyzing how the US legal system fosters incomprehensible language); specifically, on bureaucracy and the
adversarial treatment of citizens on welfare, see generally INSA KOCH, PERSONALIZING THE STATE: AN
ANTHROPOLOGY OF LAW, POLITICS, AND WELFARE IN AUSTERITY BRITAIN (2018) (exploring the relationship
between stigmatized citizens and government and discussing how state control can be regarded as adversarial).
49
Luke McGee, Vaccine slowdowns in the wealthy West could incubate the next disaster in the Covid crisis, CNN
(Sep. 4, 2021, 0906 GMT), https://edition.cnn.com/2021/09/04/health/vaccine-rollout-slowdown-intl-
cmd/index.html.

most cases the reasons behind this challenge which analogue channels for booking vaccination
appointments were also unable to solve. 50
Despite the well-known criticism of bureaucracy and the negative emotions they evoke in
citizens, the incomprehensibility of rulemaking and public administration are accepted as a
given.51 This problem was popularized in Kafka’s work (e.g., The Trial) where citizens are
presented as victims of the so-called “tyranny of distance.”52 This blind conviction to follow
burdensome rules without regard for their impact on citizens and the need to account for the
weight of bureaucracy on citizens’ lives are some of the paradoxes of modern administrative
law.
Nevertheless, bureaucracy cannot be fully set aside: Mass democracies require
bureaucracies that establish procedures and rules for the functioning of government and
exercising rights.53 Without elaborate and durable forms of administration, effective regulation,
and sophisticated legal systems, political representation and legal equality cannot be realized. 54
In the administrative state, public authorities rarely come across as forgiving in the public
50
Luke McGee, Vaccine slowdowns in the wealthy West could incubate the next disaster in the Covid crisis, CNN
(Sep. 4, 2021, 0906 GMT), https://edition.cnn.com/2021/09/04/health/vaccine-rollout-slowdown-intl-
cmd/index.html.
51
WENDY WAGNER, INCOMPREHENSIBLE! 3 (2019) (critiquing the deliberate complexity of legal systems,
information deluge, and offering solutions for reform). Fabian Hattke, David Hensel & Janne Kalucza, Emotional
Responses to Bureaucratic Red Tape, 80 PUB. ADMIN. REV. 53, 55, 59 (2019). (“administrative delays and burdens
cause negative emotions, especially confusion, frustration, and anger.”)
52
FRANZ KAFKA, THE TRIAL 68 (1925) (Kafka suggests bureaucrats who are the most removed from every day’s
challenges (strategists, executives, directors and senior managers) are responsible for the creation of
incomprehensible staples of bureaucracy, giving instructions without apparent concern for others. In The Trial,
the whipper explains that he will not be put off carrying out his duties: “I am appointed to whip, so I whip.”)
53
MAX WEBER, ECONOMY AND SOCIETY 983, 990-991 (1978).
54
Wendy Nelson Espeland, Bureaucratizing Democracy, Democratizing Bureaucracy, 25 LAW & SOC. INQUIRY
1077, 1080-1 (2000). Administrative burdens are experienced as cumbersome not only by citizens but also by
those nonprofit organizations which seek to assist them, see Kimberly Wiley & Frances Berry, Compassionate
Bureaucracy: Assuming the Administrative Burden of Policy Implementation, 47(4_suppl) NONPROFIT AND
VOLUNTARY SECTOR QUARTERLY 55S (2018) 55S-75S.

imagination, even though administrative law inherently requires a balance between the abstract
regulation of rights and accounting for specific citizens’ needs.55
The weight of bureaucracy has had a negative impact on citizens’ trust in government and
the way the former is perceived. Not surprisingly, government has been for decades portrayed
in popular media, literature, and presidential speeches as adversarial vis-à-vis the citizen,
especially menacing for minorities and underrepresented groups. 56 According to the Pew
Research Center, only 2 percent of Americans trust the federal government to do what is right
“just about always,” while 18 percent trust the federal government “most of the time.” 57
Misinformation, individual bad experiences with public experiences, and the need to constantly
jump through bureaucratic hoops are behind this negative image of government. In the United
States, citizens have particularly low trust in government’s handling threats to public health
and helping citizens out of poverty. 58
2. Social Welfare and Bureaucracy
55
See Andrew Wroe, Economic Insecurity and Political Trust in the United States, 44(1) AMERICAN POLITICS
RESEARCH 131 (2016) (arguing that economically insecure individuals harbour lower levels of political trust
because the Government is blamed for failing at its expected role).
56
In popular science, see ROMAN KRNARIC, EMPATHY: WHY IT MATTERS, AND HOW TO GET IT (2014) (arguing
that humans are naturally prone to establishing social connections and contending that greater empathy can
improve social connections). In popular media, see, for example, the Oscar Award-winning movie The Secret in
her Eyes, discussed from an academic perspective in Maria Veronica Elias, Life in State Fear: The Secret in Their
Eyes and the Recreation of a Shared World 48 ADMINISTRATION & SOCIETY 811 (2016). In literature, bureaucracy
has been famously explored in the work of Frank Kafka, namely THE TRIAL (1925) and THE CASTLE (1926). In
public speeches, see, for example, President Barack Obama, Commencement speech at the University of Michigan,
May 1, 2020 (“When our government is spoken of as some menacing, threatening foreign entity, it ignores the
fact that in our democracy, the government is us.”), discussed in Cheryl Simrell & Renee Nank, The Context:
Citizens, Administrators, and Their Discontents 3 in GOVERNMENT IS US 2.0 (Cheryl Simrell King, ed., 2011).
57
PEW RESEARCH CENTER, AMERICANS’ VIEWS OF GOVERNMENT: LOW TRUST, BUT SOME POSITIVE
PERFORMANCE RATINGS (Sep.14, 2020) [hereinafter Americans’ Views of Government Report],
https://www.pewresearch.org/politics/2020/09/14/americans-views-of-government-low-trust-but-some-positive-
performance-ratings/; see also PEW RESEARCH CENTER, PUBLIC TRUST IN GOVERNMENT: 1958-2021 (May 17,
2021), https://www.pewresearch.org/politics/2021/05/17/public-trust-in-government-1958-2021/ (showing
decreasing levels of trust since the Johnson Administration with temporary but short-lived increases at the end of
the Clinton Administration).
58
Americans’ Views of Government Report, supra note 65 at 11.

Government assistance programs are some of the most bureaucratic systems in Western
countries.59 Welfare statutes are on the one hand partly vague because welfare problems are
difficult to objectify and best resolved on a case-by-case basis.60 Bureaucratic requirements to
gain access to these programs, including eligibility criteria and guidance issued for their
verification, can be surprisingly formal and precise. 61 While the original idea of social security
and other social allowances was to alleviate poverty, promote solidarity, and support disfavored
groups by conferring a right to social security, bureaucratic systems are in practice not designed
or implemented for this purpose.62 They are rooted in narratives of “deserving vs. undeserving
poor” which have fueled more demanding eligibility criteria, aggressive anti-fraud policies,
stigmatization, and the creation of adversarial systems.63 However, the citizens these programs
aim to benefit are among the most vulnerable in our society and very often those who have
limited resources to navigate bureaucracy.64
For example, in the United States, the veteran benefit system has been criticized for
imposing onerous requirements without regard for the situation of the applicants, incurring in
59
Joel F. Handler & Yeheskel Hasenfeld, The Welfare Bureaucracy 186 in BLAME WELFARE, IGNORE POVERTY
AND INEQUALITY (Joel F. Handler & Yeheskel Hasenfeld, eds., 2006).
60
Joel F. Handler & Ellen Jane Hollingsworth, Reforming Welfare: The Constraints of the Bureaucracy and the
Clients, 118 U. PA. L. REV. 1167, 1173 (1970).
61
Handler & Jollingsworth supra note 68 at 1168, 1187.
62
Grainne McKeever, Social Citizenship and Social Security Fraud in the UK and Australia, 46 SOCIAL POLICY
& ADMINISTRATION 465, 470 (2012) (discussing how social security fraud legislation in the UK and Australia
reinforce the exclusion of claimants who have been suspected or convicted of minor social security fraud).
63
The stigmatization of welfare recipients has been well discussed in the literature and particular attention has
been devoted to the public perception of women in the system. For a historical overview, see generally MIMI
ABRAMOVITZ, REGULATING THE LIVES OF WOMEN: SOCIAL WELFARE POLICY FROM COLONIAL TIMES TO THE
PRESENT (3d ed. 2018); Alec Pemberton, Discipline and Pacification in the Modern Administrative State: The
Case of Social Welfare, 17(2) THE JOURNAL OF SOCIOLOGY & SOCIAL WELFARE 125 (1990); see also Dorothy E.
Chunn & Shelley A.M. Gavigan, Welfare Law, Welfare Fraud, and the Moral Regulation of the ‘Never Deserving’
Poor, 13(2) SOCIAL AND LEGAL STUDIES 219 (2004); Ben Baumberg Geiger, The role of knowledge and ‘myths’
in the perceived deservingness of social security benefit claimants, in THE SOCIAL LEGITIMACY OF TARGETED
WELFARE: ATTITUDES OF WELFARE DESERVINGNESS 73 (F. Roosma, B. Meuleman, and W. van Oorschot ed.
2017).
64
Handler & Jollingsworth supra note 68 at 1175 (“most welfare recipients are passive, dependent, and interested
in stability.”).Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?, 87
MICH. L. REV. 2099, 2116-7 (1989) (discussing the concept of empathy in social policy and social justice and the
relationship between empathy and the rule of law). DAMON DUNN, PACIFIC RESEARCH INSTITUTE, WELFARE
PROGRAMS PROMOTE BUREAUCRACY RATHER THAN SELF-SUFFICIENCY (Feb. 27, 2019),
https://www.pacificresearch.org/welfare-programs-promote-bureaucracy-rather-than-self-sufficiency/.

long adjudicating delays, and offering substandard judicial protection. 65 Military welfare,
though inspired by neoliberal thinking, is in principle designed to protect veterans (as resilient
subjects and “deserving citizens”). However, in practice, there are many paradoxes and
obstacles in this system and when veterans find themselves injured and denied disability
benefits, the system can be surprisingly hard to navigate. 66 This is particularly true with regard
to access to mental health services and disability benefits. 67 Furthermore, the design of the
veterans’ benefits system is non-adversarial and was conceived to protect veterans in a
paternalistic way, isolating them from other administrative law systems.68 Nonetheless, when
the system fails, veterans are left with limited judicial protection. 69
The bureaucratic legal formality used to determine eligibility criteria for social welfare
benefits has been criticized for decades as an example of indifferent and impersonal
communication with citizens. In the 1980s, Herbert Simon offered this critique with the regard
to eligibility criteria of the Aid to Families with Dependent Children (AFDC) program which
reduced citizens’ trust in the system and burdened applicants with gathering documentation
from multiple bureaucracies. 70 For citizens struggling to make ends meet on a daily basis, these
bureaucratic concerns can be extremely onerous and put them in a position where they can
65
Hugh McClean, Delay, Deny, Wait Till They Die: Balancing Veterans’ Rights and Non-Adversarial Procedures
in the VA Disability Benefits System, 72 SMU L. REV. 277 (2019); Michael E. Serota and Michelle Singer,
Veterans’ Benefits and Due Process, 90 Neb. L. Rev. (2013) (arguing that the long-drawn delays in adjudicating
claims for disability benefits deprive veterans of the fair adjudication to which they are entitled).
66
Brianne P. Gallagher, Burdens of Proof: veteran frauds, PTSD pussies, and the spectre of the welfare queen,
2(3) Critical Military Studies 139 (2016) [hereinafter Gallagher, Burdens of Proof] (arguing that the bureaucratic
impediments of the military complex and the U.S. Administration have a debilitating impact on soldiers and
veterans who seek mental health services and disability benefits).
67
Gallagher, Burdens of Proof, supra note 24, at 140-2.
68
Jennifer D. Oliva, Representing Veterans, 73 SMU L. REV. F. 103, 106, 115 (2020)
69
Hugh McClean, Delay, Deny, Wait Till They Die: Balancing Veterans’ Rights and Non-Adversarial Procedures
in the VA Disability Benefits System, 72 SMU L. REV. 277 (2019) (criticizing the lack of an adversarial process
and arguing that without adversarial processes to complement existing veteran-friendly rules, the Department of
Veteran Affairs model relegates disabled veterans to a substandard process for adjudicating disability benefits).
See also Michael P. Allen, The United States Court of Appeals for Veterans Claims at Twenty: A Proposal for a
Legislative Commission to Consider Its Future, 58 CATH. U. L. REV. 361 (2009) (stressing the need for reviewing
the veterans' benefits determinations and the Veterans Court’s role by a commission that would include
representatives of all relevant constituencies).
70
William H Simon, Legality, Bureaucracy, and Class in the Welfare System, 92 THE YALE LAW JOURNAL 1198,
1221 (1983) (The administrative reforms “have reduced [the claimants’] experience of trust and personal care and
have increased their experience of bewilderment and opacity”).

easily make mistakes. As there is little understanding of clients by caseworkers or caseworkers
by clients, many individuals will be rejected assistance because they could not jump through
the necessary “bureaucratic hoop-jumping.”71
Over the last decades, the main revolution experienced by welfare recipients and
bureaucrats was the one brought by technology. The next subpart delves into its impact on
bureaucracy and the position of vulnerable citizens before online government services and
automated government decisions.
B. Digital Government and Automation
Digital technology has become a double-edged sword for administrative law and bureaucracy.
This subpart explains why digital technology has become an additional layer of bureaucracy
for vulnerable citizens.
1. Digitization and Automation
Digitization and automation are increasingly pervasive in government services in the
United States and Europe. 72 The public sector follows a trend started by the private sector
which has fundamentally changed society. 73 In transportation, agriculture, tax, social welfare,
telecommunication, market surveillance, and many other sectors, public authorities rely on
71
Id. at 1206; Lynne N. Henderson, Legality and Empathy, 85 MICH. L. REV. 1574. 1588-9 (1987).
72
See generally AI NOW INSTITUTE, LITIGATING ALGORITHMS: CHALLENGING GOVERNMENT USE OF
ALGORITHMIC DECISION SYSTEMS (2018), https://ainowinstitute.org/litigatingalgorithms.pdf (examining U.S.
courtroom cases where algorithmic decision-making has been central to the rights and liberties at issue in the
case).
73
See, e.g., Hannah Bloch-Wehba, Automation in Moderation 53 CORNELL INT'L LJ 41 (2020) (criticizing the use
of automation in online content moderation because it thwarts personal freedoms and creates new monetization
and surveillance opportunities for platforms).

digital technology to determine the eligibility of citizens for benefits, to grant licenses, issue
payments, adjudicate claims, and issue rules. 74
The term “automated systems” refers to different information technologies that are
designed either to produce measurements or assessments regarding a particular case, or to make
an administrative decision in lieu of a civil servant. 75 While some areas of decision-making
(for example, tax systems throughout the Western world) are indeed being automated thanks
to machine learning (a subset of AI), a large number of public services rely on the more simple
automation of administrative tasks.76 Many public authorities rely on support expert systems
that provide data, rankings, indexes, and other types of preliminary analyses so as to inform a
human decision-maker (e.g., the Dutch SyRi risk system calculated the risk of individuals to
commit fraud).77
Digital technologies promise to make government more agile, efficient and effective, and
thus enhance the legitimacy of the administrative state. 78 Digital technology also has the
potential to enable the design of tailored interventions. For example, Louisiana’s Department
of Health uses Supplemental Nutrition Assistance Program enrollment data to register its
citizens for health benefits and enroll thousands of citizens for Medicaid without a separate
74
Cary Coglianese, Administrative Law in the Automated State, 150 DAEDALUS 104 (2021) (discussing the
transition to automated government services and decision-making and the challenges ahead for US administrative
law). On e-enforcement and the use of digital technology for market surveillance, see legal reforms underway in
the EU, such as the Digital Services Act, see Caroline Cauffman & Catalina Goanta, A New Order: The Digital
Services Act and Consumer Protection, EUROPEAN JOURNAL OF RISK REGULATION 1 (2021); Maria Lilla
Montagnani, Virtues and Perils of Algorithmic Enforcement and Content Regulation in the EU - A Toolkit for a
Balanced Algorithmic Copyright Enforcement, 11 CASE WESTERN RESERVE JOURNAL OF LAW, TECHNOLOGY
AND THE INTERNET 1 (2020).
75
M. Hong Chang & H. Choon Kuen, Towards a Digital Government: Reflections on Automated Decision-Making
and the Principles of Administrative Justice, 31 SINGAPORE ACAD. L. J. 875, 878 (2019).
76
Bart Verheij, Artificial Intelligence as Law: Presidential Address to the Seventeenth International Conference
on Artificial Intelligence and Law, 28(2) ARTIFICIAL INTELLIGENCE & L. 181, 186 (2020) (illustrating how the
Dutch Tax System draws on “expert knowledge of tax law and it applies that legal expertise to your specific
situation. True, this is largely good old-fashioned AI already scientifically understood in the 1970s, but by its
access to relevant databases of the interconnected-big-data kind, it certainly has a modern twist”).
77
Marijke Roosen, What SyRI Can Teach Us about Technical Solutions for Societal Challenges, Global Data
Justice (February 20, 2020), https://globaldatajustice.org/2020-02-20-roosen-syri/ (explaining the legal
challenges of SyRI or System Risk Indication. This risk indication system—in the meanwhile forbidden by Dutch
courts--referred to risk profiling in the field of social security, tax and labour fraud).
78
Beth Simone Noveck, The Innovative State, 150 DEDALUS 121, 123 (discussing the use of data-analytical
approaches to the optimization of government and the need for new approaches and training of public servants).

application process.79 Automated systems can also more easily detect risks, including whether
someone is at risk of becoming homeless. However, in most cases, the automation of
government decision-making is designed for standardization as this is more cost-effective and
more likely to promote consistency and objectivity. 80 Digitization and automation are often
included in policy agendas under the hallmark of impartiality and efficiency. Administrative
agencies do not always thus question the need to digitize and automate every single process,
its legitimacy, and the overall cost of technology for citizens’ rights. 81 However, the central
issue around the automation and digitization of government thus becomes how to do it
properly, while minimizing any harms which may have a negative impact on access to justice
and the equal treatment of vulnerable citizens.82
2. Vulnerable Citizens and the Digital Administrative State
79
Noveck supra note _ at 126; see Louisiana Department of Health, Louisiana Receives Approval for Unique
Strategy to Enroll SNAP Beneficiaries in Expanded Medicaid Coverage (Jun. 1, 2016),
https://ldh.la.gov/index.cfm/newsroom/detail/3838 (“If Medicaid can enroll 50 percent of targeted SNAP
individuals who would otherwise complete a full application for Medicaid expansion, the reduction in eligibility
man hours to enrol 52,500 individuals would be about 52,626 hours, saving the State over $1.5M in estimated pay
and benefits costs in addition to any associated administrative costs”); Medicaid, States Fast Track Medicaid
Enrollment (Sep. 5, 2021), https://www.medicaid.gov/about-us/messages/entry/47642; SHADAC, Addressing
Persistent Medicaid Enrollment and Renewal Challenges as Rolls Increase (Sep. 2, 2020),
https://www.shadac.org/news/addressing-persistent-medicaid-enrollment-and-renewal-challenges-rolls-increase;
But see Colin Lecher, What Happens When an Algorithm Cuts Your Health Care, VERGE (Mar. 21, 2018, 9:00
AM), https://www.theverge.com/2018/3/21/17144260/healthcare-medicaid-algorithm-arkansas-cerebral-palsy
(explaining how the algorithmic system’s dysfunction severely affected disabled Arkansas Medicaid recipients,
among which an amputee was left without the necessary home care assistance because the software recorded no
“foot problem”).
80
See generally Dominique Hogan-Doran, Computer Says “No”: Automation, Algorithms and Artificial
Intelligence in Government Decision-Making, 13 TJR 1 (2017) (discussing the growing use of automation in the
public sector and its legal implications).
81
Ryan Calo & Danielle K. Citron, The Automated Administrative State: A Crisis of Legitimacy, 70 EMORY L. J. 797,
804 (2021).
82
For a profound analysis of the design of new technologies for government and governance, see Deirdre K.
Mulligan & Kenneth A Bamberger, Saving Governance-by-Design, 106 CAL. L. REV. 697 (2018).

While digital technology enhanced the overall quality of government services for the majority
of citizens, one of the key challenges of digital government is to ensure that citizens without
access to the Internet or without digital skills are not behind.83 Besides the ever-present
problem of burdensome and incomprehensible bureaucracy, 84 the exclusion of vulnerable
citizens in the digital administrative state is explained by at least two additional problems:
unequal access to technology or inability to engage with it, and the discriminatory design of
automated systems.85
The study of administrative law and public administration assumes—and rightly so—that
government-citizens relationships are inevitably asymmetric and unequal. 86 In the case of
welfare benefits, citizens can only resort to the government when in need, and to courts if their
applications are denied. Ultimately, they are dependent on a governmental decision which
contrary to the private sector, does not come with alternative providers. With the pervasiveness
of digital government, new and deeper inequalities are emerging: Citizens are increasingly
required to be self-reliant, apply for a growing number of public services online, have sufficient
resources to understand how government platforms work, and what data automated systems
may use against or in their favor to decide their applications. Nevertheless, the UN, the Pew
Research Center, and literature from different disciplines have warned that millions of citizens
in Western countries (including 7% of US population) remain offline or cannot engage
critically with government websites and the Internet in general. 87 We know little about the legal
83
Arnauld Bertrand & Julie McQueen, How Can Digital Government Connect Citizens without Leaving the
Disconnected Behind?, EY (February 24, 2021) at https://www.ey.com/en_gl/government-public-sector/how-
can-digital-government-connect-citizens-without-leaving-the-disconnected-behind (“The challenge for
government is to harness data and technology to become more effective and efficient, without disadvantaged
groups behind further left behind).
84
(see supra I-A.)
85
For a general analysis of these two aspects in the context of tax law, see generally Ranchordas and Scarcella
supra note _
86
This assumption justifies the growing relevance of reason giving in administrative law, see Jodi L. Short, The
Political Turn in American Administrative Law: Power, Rationality, and Reason, 61 Duke L. J. 1811, 1821
(presenting reason-giving as an important accountability mechanism and empowerment instrument for citizens).
87
Andrew Perrin & Sara Atske, 7% of Americans Don’t Use the Internet. Who Are They?, PEW RSCH. CTR. (APR.
2, 2021), https://www.pewresearch.org/fact-tank/2021/04/02/7-of-americans-dont-use-the-internet-who-are-they/

position of vulnerable citizens but a brief overview of scholarly research can help us understand
that the number of vulnerable citizens is higher than the one estimated by governments, which
tends to be limited to citizens with proven disabilities (e.g., blindness).88
Vulnerability is an elusive and highly complex concept. Vulnerability can be permanent in
the case of disabilities or temporary. 89 However, it can also be caused by physical, cognitive,
social or economic elements.90 In the digital age, the lack of digital capital, the ability to
critically engage with online communities, can limit individuals’ abilities to perceive and
interpret information, placing them at risk of embracing misinformation and not uptaking the
technology they need for government services.91 There are vulnerabilities which are inherent
to an individual (e.g., a physical disability) and others that are situational (e.g., citizens become
prone to making mistakes because welfare application forms are formulated using complex
languages or involve master novel technologies). 92
Digital government and automated government decisions can give rise to forms of
situational vulnerability because governments digitize services with the “liberal legal subject
in mind: a fully-functioning adult, autonomous, independent who can easily engage with novel
(last accessed on August 9, 2021) (explaining Internet non-adoption on the grounds a survey conducted early
2021. According to this survey, non-adoption is explained by a number of demographic variables such as age. 25
% of adults aged 65 or older never go online. Besides age, education and household income are also indicators of
a person’s likelihood to be offline). See also Emily A. Vogels, Digital Divide Persists Even as Americans with
Lower Incomes Make Gainst in Tech Adoption, PEW RSCH. CTR. (Jun. 22, 2021),
https://www.pewresearch.org/fact-tank/2021/06/22/digital-divide-persists-even-as-americans-with-lower-
incomes-make-gains-in-tech-adoption/ (last accessed on August 9, 2021) (showing that broadband adoption and
smartphone ownership have not reduced the inequality between Americans with lower and higher incomes. While
high-income American are more likely to own multiple devices and be able to go online more often, low-income
adults do not have access to any of these technologies).
88
See MacFarlane supra note _ at 83 (offering a critique of the documentation of disability in the context of the
lack of access to affordable healthcare and arguing that disability is poorly understood).
89
Peroni & Timmers supra note 8 at 1058.
90
Id. at 1058-1060. On the concept of vulnerability and the diversity of sources of vulnerability as lack of self-
reliance, see Wilma Numans et. al., Vulnerable persons in society: an insider’s perspective, 16(1)
INTERNATIONAL JOURNAL OF QUALITATIVE STUDIES ON HEALTH AND WELL-BEING 1 (2021).
91
See generally on the importance of digital capital in the context of digital inequalities, Massimo Ragnedda,
Conceptualizing Digital Capital, 35 Telematics and Informatics 2366, 2367 (2018) (defining digital capital as
“is the accumulation of digital competencies (information, communication, safety, content-creation and
problem-solving), and digital technology.)
92
BEUC, EU CONSUMER PROTECTION 2.0: STRUCTURAL ASYMMETRIES IN DIGITAL CONSUMER MARKETS - STUDY
ON STRUCTURAL ASYMMETRIES ON DIGITAL MARKETS 198 (Mar. 2021),
https://www.beuc.eu/publications/beuc-x-2021-018_eu_consumer_protection.0_0.pdf.

government services in order to claim rights. 93 However, this is easily not true of citizens who
do not have access to the Internet and digital devices because they live in rural areas or cannot
afford it. Digital government and automation can be thus “hazardous” for vulnerable citizens
either because they are designed with an average citizen in mind which may create access
barriers to services or because they are based on historical data which may result in the unfair
processing of administrative requests. For example, personalization, online targeting, and
profiling are easily merged for the sake of optimization, allowing governments for example to
profile citizens as “potential fraudsters” who should be under stricter surveillance. 94 The
advancement of digital technology can thus expose citizens to greater situational vulnerabilities
due to digital and informational asymmetries.95
In addition, digitization and critical engagement with automation require average levels of
literacy, digital skills, including a good understanding of how automated systems operate (data
literacy, algorithmic literacy). 96 Limited literacy and reduced digital skills translate themselves
in a more limited and less engaging Internet usage. For vulnerable citizens who combine
limited digital literacy with a set of other features (e.g., less time to learn how a government
platform works because of shift cumulation), the use of digital government may be impossible
and amount to digital exclusion. This phenomenon affects mostly women, minorities, senior
citizens, and low-educated individuals either throughout their lives or in specific life events
(e.g., death of a loved one) when they do not have the choice or the motivation to employ the
93
Martha Alberson Fineman, Fineman on Vulnerability and Law, New Legal Realism (Nov 30, 2015) at
https://newlegalrealism.org/2015/11/30/fineman-on-vulnerability-and-law/ (“Western systems of law and justice
have inherited a political liberalism that imagines a ‘liberal legal subject’ as the ideal citizen – this subject is an
autonomous, independent and fully-functioning adult, who inhabits a world defined by individual, not societal
responsibility, where state intervention or regulation is perceived as a violation of his liberty.)
94
Marvin van Bekkum & Frederik Zuiderveen Borgesius, Digital Welfare Detection and the Dutch SyRI
Judgment, EUROPEAN J. OF SOC. SECURITY 6 (2021).
95
BEUC, EU CONSUMER PROTECTION 2.0: STRUCTURAL ASYMMETRIES IN DIGITAL CONSUMER MARKETS - STUDY
ON STRUCTURAL ASYMMETRIES ON DIGITAL MARKETS 25 (Mar. 2021),
https://www.beuc.eu/publications/beuc-x-2021-018_eu_consumer_protection.0_0.pdf.
96
Ina Sander, Critical Big Data Literacy Tools—Engaging Citizens and Promoting Empowered Internet Usage,
2 Data & Policy 5 (2020) doi: 10.1017/dap.2020.5 (discussing the importance of data literacy for citizen
empowerment).

necessary technology or this option is reduced.97 Nevertheless, it can also affect almost
anybody at some point in life. According to Martha Fineman, vulnerability is universal and all
individuals can be vulnerable at some point when their lives take unexpected and tragic turns.98
In conclusion, digital technology promised to alleviate the burden of bureaucracy which
was particularly heavy on those who need government the most. The digital administrative state
delivers positive results for the majority of citizens who can engage autonomously with
government. However, millions of citizens can either never do so or at some point in their lives,
they will not be able to, without committing mistakes or missing out on important information.
It is in this context that empathy in government can play a role to close the gap between
connected and disconnected citizens.
II. EMPATHY IN LAW AND GOVERNMENT
Administrative law in its complexity and sometimes, inflexible procedures and
requirements, was developed to govern the administration and regulation of government
agencies both at federal and state levels. 99 Regardless of the many differences between the US
administrative system and that of other countries, it is fair to say that administrative law
throughout the world was developed to control a human executive power.100 Administrative
law’s original and current design take into account that human officials can potentially use and
abuse their discretion by doing personal favors or issue disproportionate decisions that can
97
FRANCESCA ASHURST & COUZE VENN, INEQUALITY, POVERTY, EDUCATION: A POLITICAL ECONOMY OF SCHOOL
EXCLUSION (2014); Laura Faure et al., A situated approach to digital exclusion based on life courses. 9(2)
INTERNET POLICY REVIEW (2020).
98
Martha Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition 20(1) YALE JOURNAL
OF LAW AND FEMINISM 1 (2008); Martha Fineman, The Vulnerable Subject and the Responsive State, 60 EMORY
LAW JOURNAL, 251 (2010).
99
Fox supra note 44.
100
On the differences between US and German administrative law, see Rose-Ackerman supra note 49.

harm citizens. Therefore, the exercise of discretion is limited, procedural rules guiding
decision-making should be followed, citizens have several rights (e.g., right to be heard), and
over the last decades, there has been a trend to enhance reason-giving and further objectify
administrative law. 101
However, with the growing automation and de-humanization of administrative law, many
of the old problems this field was concerned with, disappear, other become enhanced (e.g.,
algorithmic bias and discrimination) and novel concerns emerge. 102 Administrative law is now
required not only to regulate the “flaws” of humans but also those of “machines” and the
possibly flawed interaction between humans and machines. 103
This Part delves into one element that thus far has been inherent to the human
implementation of administrative law: empathy. This Part discusses the concept of empathy
and its role in law and government. It also offers a review of existing scholarly perspectives on
how empathy can contribute to the advancement of justice and fairness.
A. What is Empathy in Law and Public Administration?
101
See Short supra note 98 (on reason giving in administrative law as an accountability mechanism); Gillian E.
Metzger & Kevin M. Stack, Internal Administrative Law, 115 Michigan L. Rev. 1239 (2017) (discussing the role
of internal measures as oversight mechanisms for agency operations and how they encourage consistency,
predictability, and reasoned decision-making). More generally on judicial objectivity see Robert W. Bennett,
Objectivity in Constitutional Law, 132 U. Pa. L. Rev. 445 (1984).
102
Cary Coglianese, Administrative Law in the Automated State, 150 DAEDALUS 104, 110 arguing that the responsible
use of automation might outperform in the future traditional administrative law tools and underling the need for empathy
in an automated state); See Ryan Calo & Danielle K. Citron, The Automated Administrative State: A Crisis of Legitimacy,
70 EMORY L. J. 797, 819 (2021) (“Automation has not been as clear a win for governmental efficiency and fairness as
administrators had hoped and as vendors have claimed. It has not eliminated bias but rather traded the possibility of
human bias for the guarantee of systemic bias. Prior failures have not informed present efforts. Instead, problems have
multiplied, diversified, and ossified”).
103
On the interaction between humans and automated systems, see generally Tim Wu, Will Artificial Intelligence
Eat the Law? The Rise of Hybrid Social Ordering Systems, 119 Columbia L. Rev. 2001 (2019); Meg Leta Jones,
The Right to a Human in the Loop: Political Constructions of Computer Automation and Personhood, 47 Social
Studied of Science 216 (2017) (discussing the role of humans in automated decisions. In the European context
(and contrary to the US), the concept of “human-in-loop” is important as automated decisions always require the
presence of a human decision-maker).

1. Definition
Empathy is an elusive concept and there is no consensus in the literature as to how it should be
defined and what exactly it should be for. 104 The word “empathy” was only Latinized to
empathy in the nineteenth century and then introduced in the English language. 105 The word
originates from the translation of the German word “Einfühlung, meaning “feeling into.”
Empathy is a component of social cognition that contributes to our capacity to understand
others and adapt our behavior accordingly. 106
Over the last years, there have been attempts to assess empathy according to objective
standards. The Toronto Empathy Questionnaire is widely used to measure empathy through a
self-reported assessment that measures emotional (compassion) and cognitive elements of
empathy.107 Examples of assessments that target emotional empathy are “It upsets me to see
someone being treated disrespectfully” and “Other people’s misfortunes do not disturb me a
great deal.”108 Cognitive empathy can be measured through statements such as “I can tell when
others are sad, even when they don’t say anything.” 109 The emotional component of empathy
involves sympathy or “feeling sorry” for someone, while the adoption of a different perspective
requires the cognitive process of apprehending visual, auditory or situational cues. 110
104
Mariglynn Edlins supra note _ at 24.
105
Theresa Wiseman, A concept analysis of empathy, 23(6) JOURNAL OF ADVANCED NURSING 1162 (1996).
106
See R. Nathan Spreng, Margaret C. McKinnon, Raymond A. Mar & Brian Levine, The Toronto Empathy
Questionnaire, 91 J. OF PERSONALITY ASSESSMENT 62 (2009) (discussing a tool to assess empathy, namely the
Toronto Empathy Questionnaire).
107
Toronto Empathy Questionnaire, at https://psychology-tools.com/test/toronto-empathy-questionnaire. Spreng
supra note 117 at 62-4. On the validity and reliability of the Toronto Empathy Questionnaire, see Ntina
Kourmousi, Eirini Amanaki, Chara Tzavara, Kyriakoula Merakou, Anastasia Barbouni, and Vasilios Koutras, The
Toronto Empathy Questionnaire: Reliability and Validity in a Nationwide Sample of Greek Teachers, 6 Social
Sciences 62 (2017) at https://doi.org/10.3390/socsci6020062
108
Toronto Empathy Questionnaire Instructions # 2 and #3 at https://psychology-tools.com/test/toronto-empathy-
questionnaire
109
Toronto Questionnaire #8
110
Katherine P. Rankin et. al., Patterns of cognitive and emotional empathy in frontotemporal lobar degeneration,
18(1) COGN BEHAV NEUROL 28, 29-30 (2005).

The concept of empathy is present in many areas of the public sector and in the scholarship
that has seriously delved into it: education, health, public health, and social work all require, at
some point, empathic reactions from street-level bureaucrats, that is, the government
employees interacting with the public. 111 Empathy is thus a value within public service. 112 It
does not provide concrete answers on how to act and decide but it alerts decision-makers to
moral choice and their responsibility to analyze different perspectives. 113 Empathy is needed
because it helps achieve subjective justice as opposed to objective justice which is particularly
important in social policies. Even though administrative law in different jurisdictions is
primarily concerned with objective justice, that is, compliance with established procedures;
subjective justice, and its focus on ensuring that the process itself is fair and parties feel they
are treated fairly and are truly heard, has become increasingly important in the last two
decades.114
In this Article, I define empathy as the ability to acknowledge, respond, and understand
the situation of others, their challenges and concerns.115 However, empathy is not only an
innate ability, it is also a skill that can be further developed if often practiced. 116 Empathy is
not reduced to an emotion: it is something we feel, do, and can practice to do better. 117
2. Empathy in Law
111
Dolamore supra note _ at 61.
112
Edlins & Dolamore supra note _. Dolamore supra note _ at 61.
113
Henderson supra note _ at 1653.
114
Andrea Shemberg, Mediation as an Alternative Method of Dispute Resolution for the Individuals with
Disabilities Education Act: A Just Proposal, 12 OHIO ST J ON DISP RESOL 739 (1997).
115
Mariglynn Edlins & Stephanie Dolamore, Ready to serve the public? The role of empathy in public service
education programs, 24 JOURNAL OF PUBLIC AFFAIRS EDUCATION 300 (2018) (drawing on empirical studies, this
article explores the importance of empathy in public service education programs).
116
Edlins supra note _ at 25.
117
Edlins supra note _ at 28-9

The role of empathy in law has been particularly present in the literature on judicial lawmaking
and compassion.118 Empathy is discussed here in connection with the protection of the rule of
law as well as in the context of procedural rights (for example, the right to be heard).
Compassion helps judges better understand and describe a situation experienced by another
person and thus increases the quality of legal reasoning since it improves multi-perspectival
imagination.119 It has been argued that compassion can increase the quality of legal reasoning
as it improves multi-perspectival imagination. 120 In a legal dispute, decision-makers are
required to apply complex legal concepts, vague and indeterminate terms, and construct mental
images of what it might have been like for a person to experience a certain situation. 121 Case
law abounds with examples of empathy or the lack thereof. Empirical research on procedural
justice has demonstrated that empathy in law can increase individuals’ perception of legitimacy
and feel that judicial outcomes are fairer. 122 In the United States, the literature has discussed
the role of empathy or the lack thereof in a number of the Supreme Court’s decisions, including
Brown v. Board of Education (I), Shapiro v. Thompson, Roe v. Wade, Bowers v. Hardwick, and
DeShaney.123
The well-known DeShaney case is often cited in this context. This case regards the role of
the county child protection authorities to protect a child (Joshua) that had endured years of
118
Maksymilian Del Mar, Imagining by feeling: a case for compassion in legal reasoning, 13(2) International
Journal of Law in Context 143 (2017) (arguing that compassion can help judges understand better the position of
defendants and that “imaging by feeling” is not a threat to the rule of law but a condition of it). See also Susan A.
Bandes, Compassion and the Rule of Law, 13 International Journal of Law in Context 184, 191 (2017) (discussing
the role of compassion in the implementation of the rule of law).
119
Maksymilian Del Mar supra note _ at 148.
120
Maksymilian Del Mar supra note _ at 148.
121
Maksymilian Del Mar supra note _ at 153. See also for instance the concept of open-ended norms such as good
faith in contract law,
https://pure.uva.nl/ws/files/1019849/94441_The_concept_of_good_faith_in_Towards_a_European_Civil_Code.
pd
122
Allen E. Lind and Tom Tyler, The Social Psychology of Procedural Justice (New York: Springer International
Publishing, 1988). [add more work by Lind]
123
See Henderson supra note _ at 1577, 1593-1649 (discussing empathy in Brown v. Board of Education (I) 347
U.S. 483 (1954).; Shapiro v. Thompson 394 U.S. 618 (1969); Roe v. Wade 410 U.S. 113 (1973); Bowers v.
Hardwick, 106 S. Ct. 2841 (1986).

domestic violence. 124 The US Supreme Court was asked to interpret the due-process clause,
deciding whether this clause imposed an affirmative duty on the county to protect the child
from private violence and thus required the county social services to guarantee a minimum
level protection.125 The Supreme Court decided that it did not. 126 The literature has contended
that the quality of the judgment could have been greatly improved if it had been informed by
compassion, especially in the characterization of the facts. 127 This would mean considering not
only the perspective of the victim but also that of the father (the perpetrator), caseworkers, and
the local department of social services.
In Henderson v. Shinseki, the US Supreme Court ruled unanimously that a deadline for
military veterans who appeal the federal government's denial of benefits does not need to be
rigidly enforced.128 The justices sided with a mentally ill Korean War veteran whose appeal
was blocked because he missed a 120-day deadline for judicial review by 15 days.129 Writing
for the court, Justice Alito explained that “The (Department of Veterans Affairs) is charged
with the responsibility of assisting veterans in developing evidence that supports their claims,
and in evaluating that evidence, the VA must give the veteran the benefit of any doubt. ... Rigid
124
DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 190-193 (1989).
125
DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (In 1984, four-year-old Joshua
DeShaney became comatose and then profoundly retarded due to traumatic head injuries inflicted by his father
who physically beat him over a long period of time. The Winnebago County Department of Social Services took
various steps to protect the child after receiving numerous complaints of the abuse; however, the Department did
not act to remove Joshua from his father's custody. Joshua DeShaney's mother subsequently sued the Winnebago
County Department of Social Services, alleging that the Department had deprived the child of his “liberty interest
in bodily integrity, in violation of his rights under the substantive component of the Fourteenth Amendment's Due
Process Clause, by failing to intervene to protect him against his father's violence.” The Court concluded that the
Due Process Clause does not impose a special duty on the State to provides services to the public for protection
against private actors if the State did not create those harms.)
126
DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 198-199 (1989).
127
B. Zipursky, DeShaney and the Jurisprudence of Compassion, 65 N. Y. U. L. Rev. 65: 1101 (1990).
128
Henderson v. Shinseki, 562 US 428, 431 (2011).
129
Henderson v. Shinseki, 562 US 428, 431 (2011).

jurisdictional treatment of the 120-day period for filing a notice of appeal in the Veterans Court
would clash sharply with this scheme."130
In Shinseki v Sanders, the Washington Legal Foundation (WLF) had argued that when a
veteran commits procedural errors, a reviewing court should presume that the veteran was
prejudiced by the errors unless the veteran demonstrates otherwise. 131 The Supreme Court
disagreed, ruling that claimants for disability benefits whose claims have been denied should
bear the burden of demonstrating prejudiced by any procedural errors. 132 Justice Souter filed a
dissenting opinion in which Justice Stevens and Ginsburg joined. 133
This case law shows that empathy can improve the quality of case law by ensuring that all
relevant perspectives are considered. Compassion and in particular, empathy can help judges
understand in full objectify administrative adjudication, understand fully what is at stake for
litigants, and practice empathy toward both citizens and public authorities and its
representatives.134 Moreover, empathy can help decision-makers conduct balancing and
reasonableness tests of administrative decisions as they help judges gain an empathic
appreciation of the different interests at stake. 135 In constitutional adjudication, this
appreciation is particularly important because a special understanding of human beings and
their adversities is required. 136 Also, the multiple perspectives triggered by compassion can
help decision-makers accept the need for humility in the way they perceive facts.137
130
Henderson v. Shinseki, 562 US 428, 431, 434-436 (2011)
131
Shinseki v. Sanders, 129 S. Ct. 1696, 1705 (2009).
132
Shinseki v. Sanders, 129 S. Ct. 1696, 1705 (2009).
133
Shinseki v. Sanders, 556 U.S. 396, 416 (2009)
134
Susan A. Bandes, Compassion and the Rule of Law, 13 International Journal of Law in Context 184, 191
(2017); see also on empathy and the role of judges, Rebecca K. Lee, Judging Judges: Empathy as the Litmus Test
for Impartiality, 82 U. Cin. L. Rev. 145 (2014).
135
Thomas Colby, In Defense of Judicial Empathy, 96 Minnesota Law Review 422 (2012).
136
Lucia Corso, Should Empathy Play any Role in the Interpretation of Constitutional Rights? 27 RATIO JURIS 94
(2014).
137
R. S. Oeters, Reason and Compassion 79 (2015).

B. Empathy in Public Administration
Empathy is a public service value which is presented in the public administration and public
policy literature as “supportiveness, nurturance,” “open-minded reasoning, fairness,”
“altruism, moral conviction,” and “caring” for others.138 Empathy co-exists with other public
service values (e.g., efficiency, accountability) and requires public servants to try to understand
citizens’ needs in the context of challenging government transactions and regulation.139The
literature on empathy in public administration can be divided in two main strands: the study of
the instruments that create empathy as a means to an end, often as an ingredient for better
relationships between citizens and government and enhance public trust; and the study that
seeks to detect the existence of empathy as such in public organizations. 140
Empathy in public administration can be translated into different mechanisms,
instruments, and stages of government transactions. Empathic discourse is one of them. For
example, it can include mere but explicit expressions of empathy in letters or other direct
communication sent to citizens such as simple statements (“we understand your situation and
your need to relocate”) that humanize public communication. 141 Street-level bureaucrats, as
mediators between citizens and governments, can better translate law into justice through the
138
Guy, M. E., Newman, M. A., & Mastracci, S. H. (2008). Emotional labor: Putting the service in public service.
Armonk, NY: M.E. Sharpe. Lewis, C. W., & Gilman, S. C. (2012). The ethics challenge in public service: A
problem-solving guide 164 (2012). Brewer, G. A., Selden, S. C., & Facer, R. L. I., Individual conceptions of
public service motivation, 60(3) PUBLIC ADMINISTRATION REVIEW 254 (2000); Perry, J. L., Brudney, J. L.,
Coursey, D., & Littlepage, L., What drives morally committed citizens? A study of the antecedents of public service
motivation, 68(3) PUBLIC ADMINISTRATION REVIEW 445 (2008). Lewis, C. W., & Gilman, S. C. (2012). The ethics
challenge in public service: A problem-solving guide 164 (2012).
139
Dolomore supra note _ at 78. According to Cary Coglianese, regulatory excellence must involve a certain
degree of empathy translated into the empathic engagement with all segments of society when issuing decisions
and exercising authority, see Cary Coglianese, Listening, Learning, and Leading: A Framework for Regulatory
Excellence (2015), https://www.law.upenn.edu/live/files/4946-pprfinalconvenersreport.pdf
140
Dolomore supra note _ at 63. For an example of the literature that focuses on empathy as a means to create
trust, see generally0 Lisa A. Zanetti & Cheryl Simrell King, Transformational Public Service Revisited:
Possibilities for Changing the Discipline? 35 Administrative Theory & Praxis 128 (2013).
https://www.jstor.org/stable/23481092. For an example of scholarship that focuses on the detection of moments
of empathy, see Oxburgh, G., & Ost, J. (2011). The use and efficacy of empathy in police interviews with suspects
of sexual offences. Journal of Investigative Psychology and Offender Profiling, 8(2), 178–188.
141
Dolomore supra note _ at 76-77.

practice of empathy. However, there are concerns that street-level bureaucrats may only show
empathy when they can put themselves in the position of citizens because they resemble
them.142
Empathy can also be promoted through internal measures. 143 Public authorities issue
yearly a large number of general nonbinding policy statements advising the public or other
authorities on how the agency proposes to exercise discretion or interpret the law. 144
“Guidance” exists in all shapes and sizes and it is present in both common law and civil law
systems. Its function, process, applicability, limits, and role in adjudication and judicial review
have been at the core of administrative law scholarship in Western countries. 145 Empirical
research has demonstrated that agency officials are not always inflexible when following
guidance, and when this occurs, this is explained not by the content of guidance but by the
structure of regulatory schemes. 146
In the United States (like elsewhere) administrative agencies have in many cases the power
to be flexible and to not enforce the law under special circumstances, since this can be the most
proportionate outcome for the case.147 The blind application of law to all citizens without regard
for the diverse needs of the citizenry is not aligned with the principles of good administration and
good governance because empathy is a key element of good governance.148 In circumstances where
highly consequential decisions affecting the well-being of individuals must be made by
142
Mariglynn Edlins & Stephanie Dolamore supra note _ at 300.
143
Metzger & Stack supra note 112.
144
See Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 ADMIN. L. REV. 263, 287-317 (2018)
(discussing at length case law on policy statements).
145
Metzger & Stack supra note 112.
146
Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and
Industries, 36 YALE J. ON REGULATION 165, 171-176 (2019) (discussing the findings of a qualitative empirical
study of federal agency guidance).
147
On the decision to not enforce the law, see Aaron Nielson, How Agencies Choose Whether to Enforce the Law:
A Preliminary Investigation, 93 NOTRE DAME LAW REVIEW 1517 (2018) (providing a taxonomy of
nonenforcement and arguing that nonenforcement should be limited by important safeguards to avoid abuses).
148
Cary Coglianese, Administrative Law in the Automated State, 150 DAEDALUS 104, 113 (2021) (arguing that the
responsible use of automation might outperform in the future traditional administrative law tools and underling the need
for empathy in an automated state).

governments, empathy can also demand that administrative agencies provide opportunities for
human interaction and for listening and expressions of concern. However, empathy is not a
panacea for administrative law. There are several objections to the expansion of empathy in
administrative law since it generates room for arbitrary decisions and legal uncertainty.
Empathy is thought to open the door to “individualized justice” which could mean that judges
and other legal decision-makers would have more discretion. 149 The following subpart explores
these objections.
C. Against Empathy in Law and Government
The role of empathy in the interpretation of law is disputed. Just legal interpretations can be
limited to juristic interpretations which exclude moral or empathic elements. On the one hand,
the notion of justice is not only formal. It also contains a substantive meaning that implicates
taking into account shared perspectives and different viewpoints. 150 On the other, compassion,
empathy, and generally accounting for feelings in law are criticized for posing challenges to
rationality, overall fairness, predictability, consistency, and ultimately the rule of law. 151
Moreover, the incorporation of experiential understandings of facts, persons, and groups does
not fit in legal systems that seek to be guided by values of predictability, determinacy, and fear
any instruments that can destabilize the status quo. 152 The inclusion of pockets of empathy
149
Massaro supra note _ at 2116-2117 (“The argument for more empathy often includes a call for more
"individualized" justice. The claim is that judges should focus more on context - the result in this case to these
parties - and less on formal rationality - squaring this result with results in other cases. This means that law must
be more open-ended or general, and that legal decisionmakers must be given greater flexibility to reach "right"
decisions.”)
150
John Deigh, Empathy, Justice, and Jurisprudence, 49 THE SOUTHERN JOURNAL OF PHILOSOPHY 73, 79-80
(2011) (arguing that empathy is essential to legal interpretation).
151
Susan A. Bandes, Compassion and the Rule of Law, 13 International Journal of Law in Context 184 (2017)
(arguing that compassion poses difficult challenges for the rule of law and that its role should be limited to aiding
decision-makers in better understanding what is at stake for the litigant).
152
Lynne N. Henderson, Legality and Empathy, 85 MICH. L. REV. 1574 (1987) (reviewing literature critical of
the role of empathy in law and arguing that empathy and legality are not mutually exclusive concepts. The Author

could be easily abused by legal decisionmakers and give rise to corruption and nepotism,
problems which law has tried to combat for decades.
The negative impact of empathy on discretionary powers is an additional objection to the
introduction of empathy in administrative law. Empathy can be subversive of the core
principles of administrative law and its ratio since in theory, room for empathy could extend
discretionary powers. This objection is only partially true. To illustrate, empirical research
conducted on the impact of impact of street-level bureaucrats has confirmed that indeed
discretionary decision-making is affected by empathy and this can affect street-level
bureaucrats’ everyday priorities in the exercise of their functions. 153 However, this study also
showed that this impact is highly dependent on a number of factors.
First, high or low-empathy of street-level bureaucrats is very often determined by the
attitude of citizens, the balance between client-related concerns and the protection of more
pregnant administrative concerns. 154 Second, drawing on existing scholarship on
administrative behavior, this study showed once again that bureaucrats’ exercise of empathy
cannot only be reduced to personal interests or policy preferences. 155 Should this be the case,
then it would indeed be perilous to advance a legal concept that allows for more empathy and
thus more room to pursue individual interests. Instead, research has long shown that
bureaucrats’ decisions are also limited by their ability to act in a certain manner. 156 Third, the
boundaries of discretionary powers can determine the way in which street-level bureaucrats
exercise their empathy and whether they allow their personal attributes (e.g., their gender)
argues that empathy can revolutionise habitual legal thinking and, due to its explanatory power, transform legal
problems.)
153
Didde Cramer Jensen & Line B. Pedersen, The Impact of Empathy—Explaining Diversity in Street-Level
Decision-Making, 27 J. OF PUB. ADMINISTRATION RESEARCH & THEORY 433 (2017) (investigating whether the
empathic abilities of street-level bureaucrats have an impact on their discretionary decision-making).
154
Jensen en Pedersen supra note _ at 440.
155
HERBERT SIMON, ADMINISTRATIVE BEHAVIOR: A STUDY OF DECISION-MAKING PROCESSES IN
ADMINISTRATIVE ORGANIZATION. 205 (1945, ed. 1997); Jensen & Pedersen supra note _ at 40-442.
156
HERBERT SIMON, ADMINISTRATIVE BEHAVIOR: A STUDY OF DECISION-MAKING PROCESSES IN
ADMINISTRATIVE ORGANIZATION. 205 (1945, ed. 1997).

further amplify their empathic abilities.157 Street-level bureaucrats behavior, including their
empathic actions are a product of both institutional and personal characteristics and the former
can be shaped by the clear redesign of how empathy should be exercised in the administrative
context.
Emotion and empathy are inherent parts of law from its very conception in the political
sphere. There is thus some irony in the rejection of empathy in law as legislation may be the
ad hoc reaction to an emotional case but once a law moves from the realm of politics to that of
law, agencies and judges are expected to cleanse it of any emotion for the sake of the rule of
law.158 Furthermore, empathy in law can be operationalized (see infra Part IV) to encompass
concrete proposals for legislative, doctrinal, and procedural reforms that encourage decision-
makers to seek to not only hear but also understand multiple voices and communities.159
III. THE LOSS OF EMPATHY IN THE DIGITAL ADMINISTRATIVE STATE: A COMPARATIVE
ANALYSIS
This Part discusses how the digitization and automation of the administrative state are reducing
not only existing pockets of empathy but also contributing to the narrow regard for citizens’
157
Vibeke Lehmann Nielsen, Personal Attributes and Insitutions: Gender and the Behavior of Public Employees.
Why Gender Matters to not only “Gendered Policy Areas.” 25 J. of Public Administration Research & Theory
1005 (investigating whether gender plays a role in the way in which public employees exercise their functions,
particularly with regard to competitiveness, empathy, and systemizing). See, nonetheless, Adam Glynn & Maya
Sen, Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women's Issues? 59
AMERICAN JOURNAL OF POLITICAL SCIENCE 37 (2015) (demonstrating that judges with daughters consistently
vote in a more feminist fashion on gender issues than judges who have only sons. This result demonstrates that
personal experiences influence how judges make decisions, thus that empathy may indeed be a component in how
judges decide cases.)
158
Henderson supra note 158 at 1575 (“ Ironically, while emotion may generate laws via "politics," once those
laws meet whatever criteria are necessary to consti- tute legitimacy in a system, they are cleansed of emotion
under this vision of the Rule of Law. The law becomes not m~rely a human institution affecting real people, but
rather The Law.”)
159
Massaro supra note _ at 2124-5 (further adding that the operationalization of empathy requires turning to
“§§very difficult questions. How, for example, should we measure our progress toward a goal of empathic law?
What do communitarian rules look like? Who should the lawmakers be in an empathic legal system? How do we
realize, in a workable way, these utopian objectives?)

diverse needs. This Part explores two examples of limited empathy in the automation of
welfare: MiDAS and the Dutch Childcare Benefits Scandal. These examples illustrate well
how the automation of welfare can easily reduce vulnerable citizens to faceless numbers whose
lives can be destroyed because of algorithmic biases and incorrect data.
A. Dutch Childcare Benefits Scandal
In January 2021, the Dutch government resigned amid a longstanding scandal over child
benefits that had affected more than 20,000 families in the Netherlands. 160 The Dutch Prime
Minister acknowledged that Dutch tax authorities had “wrongly hunted down thousands of
families,” “making the government the enemy of the people.” 161 Drawing on large databases
and computational algorithms, the Dutch tax authorities wrongly accused thousands of citizens
of fraudulently claiming child allowance over several years from 2012. 162 More than half of
these families were requested to repay tens of thousands of euros due to the strict application
of the law which did not account for the human impact of these sudden repayments.163 Some
160
Jon Henley, Dutch Government Faces Collapse over Child Benefits Scandal, The Guardian (January 14, 2021)
at https://www.theguardian.com/world/2021/jan/14/dutch-government-faces-collapse-over-child-benefits-
scandal .
161
at https://www.theguardian.com/world/2021/jan/14/dutch-government-faces-collapse-over-child-benefits-
scandal .
162
Dutch House of Representatives, Report Commissie Van Dam {Unprecedented Injustice] 29 (2020) at
https://www.houseofrepresentatives.nl/sites/default/files/atoms/files/verslag_pok_definitief-en-gb.docx.pdf
[Report in English, official Parliamentary translation] (“The regular information on progress relating to the
administration of the childcare allowance was centred around big numbers, targets, and key performance
indicators, rather than on the hard and distressing consequences of the anti-fraud approach that some of those
applying for the allowance were faced with.”)
163
Dutch House of Representatives, Report Unprecedented Justice supra note 193 at 35-36 (“The Childcare Act
entered into force on 20 October 2004, creating the right to claim childcare allowance from the year 2005. The
Act provides the statutory basis for childcare allowance. In essence, the childcare allowance amount depends on
the ability of the parents to pay and the costs of childcare….Section 26 states that if it is established that benefits
have been paid that should not have been, the whole amount must be repaid. A discussion is now taking place as
to whether there is some leeway in that provision, Section 26, but reading it at first sight, it is a fairly strict
provision.”)

investigations were triggered by “something as simple as an administrative error, without any
malicious intent.”164
The Parliamentary committee responsible for investigating this scandal stated that “the desire
among politicians for the administration of benefits to be carried out efficiently and the wishes
of politicians and society at large to prevent fraud resulted in the creation and implementation
of legislation that permitted little scope, if any, for taking account of people’s individual
circumstances, such as administrative errors committed with no ill-intent.”165 However,
bureaucracy was too complex to navigate for most of them, they were not able to engage with
digital government in a country where most services are online, or they were accused on the
grounds of ethnic profiling and could not prove authorities wrong. 166 The group of “victims”
included Law students, a judge, and other highly educated citizens who were vulnerable at the
time of filling in their administrative applications. 167 However, computational algorithms did
not have any consideration for this vulnerability and neither did human public servants who
trusted their results.168 Furthermore, citizens were not able to defend themselves before public
bodies as they were overwhelmed by the bureaucracy they had to face.169 These investigations
and consequent sanctions drove hundreds of citizens into situations of homelessness, divorces,
bankruptcy, and some lost her their children to the system because they were found unable to
take care of them due to the psychological and financial stress they faced. 170 Embedded ethnic
profiling was one of the key problems of the digital technology used. 171 More than half of these
families had immigrant or vulnerable backgrounds which were identified by algorithmic
164
https://www.theguardian.com/world/2021/jan/14/dutch-government-faces-collapse-over-child-benefits-scandal
165
Dutch House of Representatives, Report Unprecedented Justice supra note 193 at 7.
166
Id. at 7-10.
167
Senay Boztas, The Childcare Benefits Scnadal: Voices of the Victims, Dutch News (January 15, 2021) at
https://www.dutchnews.nl/news/2021/01/the-childcare-benefits-scandal-voices-of-the-victims/
168
169
Senay Boztas, The Childcare Benefits Scnadal: Voices of the Victims, Dutch News (January 15, 2021) at
https://www.dutchnews.nl/news/2021/01/the-childcare-benefits-scandal-voices-of-the-victims/
170
Id.
171

systems designed to detect large-scale fraud.172 In 2021, after a parliamentary report showed
that tax authorities had wrongfully accused these citizens and courts’ judicial review was
inadequate, the Dutch government consisting of the Dutch Prime Minister and all other
Ministers and Secretaries of State, resigned over this scandal. 173 The Dutch Prime Minister
apologized for this injustice, acknowledging that “innocent people [had] been criminalized and
their lives ruined.”174
1. MiDAS
MiDas (Michigan Integrated Data Automated System) was an unemployment algorithmic
decision-making system which was originally designed to ensure that unemployment checks
were distributed only to eligible individuals.175 However, it rapidly became an asset in the
optimization of the Michigan Unemployment Insurance Agency, allowing the reduction of
rising unemployment rising claims and the elimination of more than 400 workers.176 Moreover,
MiDAS started being used as a weapon of mass combat against fraud.177 Not surprisingly, the
agency suddenly detected a fivefold increase the number of cases of fraud.178 MiDAS was able
172
Id.
173
Jon Henley, Dutch Government Faces Collapse over Child Benefits Scandal, The Guardian (January 14,
2021) https://www.theguardian.com/world/2021/jan/14/dutch-government-faces-collapse-over-child-benefits-
scandal
174
Anna Holligan, Dutch PM Rutte Government Resigns over Child Welfare Fraud Scandal, BBC News (January
15, 2021) at https://www.bbc.com/news/world-europe-55674146 (last accessed on August 9, 2021).
175
Alejandro de La Garza, States Automated Systems Are Trapping Citizens in Bureaucratic Nightmares with
Their Lives on the Line, Time (May 17, 2020) at https://time.com/5840609/algorithm-unemployment/
176
Matthew B. Seipel, Robo-Bureaucrat and the Administrative Separation of Powers, 2020 CARDOZO L. REV.
DE-NOVO 99 (2020). Editorial: State Will Pay for Cutting Corners With Unemployment System Automation,
TRAVERSE CITY RECORD EAGLE (Dec. 7, 2019), https://www.record-eagle.com/opinion/editorials/
editorial-state-will-pay-for-cutting-corners-with-unemployment-system/article_6794c522-192bllea-9df2
676c5450b875.html [https://perna.cc/5JEY-8XGV]; Robert N. Charette, Michigan's MiDAS Unemployment
System: Algorithm Alchemy Created Lead, Not Gold, IEEE SPECTRUM (Jan. 24, 2018)
https://spectrum.ieee.org/riskfactor/computing/software/michigansmidas-unemployment-system-algorithm-
alchemy-that-created-lead-not-gold
177
AI NOW, Report 2019, 35-36 (2019) at https://ainowinstitute.org/AI_Now_2019_Report.pdf
178
Id.

to generate an unprecedent amount of revenue for the UIA.179 Nonetheless, MiDAS was flawed
and much like the Dutch Childcare Benefits case, there were many failures in the system.
MiDAS resulted in 34,000 false accusations of unemployment fraud.180 The financial stress
and overwhelming pressure on the alleged fraudsters culminated in multiple personal tragedies,
ranging from evictions to divorces, credit score destruction, homelessness, and bankruptcies. 181
To collect the repayments - that could go up to $187,000 - the state could immediately garnish
a person's wage, seize federal and state income tax refunds, and start a criminal referral if
payments were not received. 182
Contrary to the Dutch case, MiDAS did not have the same long-lasting effect thanks to the
activism of activists, lawyers, and the response of courts. Lawyers and advocates representing
accused fraudsters were able to prove that many wrong fraud accusations were generated
algorithmically with no human intervention or review of the accusation, resulting 93% margin
of error.183 Even when there had been a “human-in-the-loop,” the human had trusted the system
and there was still a 44% error rate. 184 The system was based on incomplete data and it did not
distinguish between intended fraud and administrative errors.185 Also, computer-generated
notices were drafted in such a way that recipients would inadvertently admit the fraud.186
Additionally, notifications were sent to old addresses or through dormant online accounts that
179
To the sharp rise, contributed also the harsh penalties of 400% on the claimed amount of fraud.
180
181
Michele Gilman & Mary Madden, Digital Barriers to Economic Justice in the Wake of COVID-19, Data &
Society, 2021; Ryan Felton, “Criminalizing the Unemployed,” Detroit Metro Times, July 1, 2015,
https://www.metrotimes.com/detroit/criminalizing-the-unemployed/Content?oid=2353533&storyPage=2
182
183
A study found out that from October 2013 to September 2015, MiDAS robo-adjudicated 40,195 cases with no
human involvement, and those had 85% error rate, Paul Egan, Michigan Integrated Data Automated System
Experiences 93 Percent Error Rate During Nearly Two Years of Operation, GovTech (July 31, 2017) at
https://www.govtech.com/data/michigan-integrated-data-automated-system-experiences-93-percent-error-rate-
during-nearly-two-years-of-operation.html
184
Id.
185
Id.
186
Id.

workers no longer checked since they long stopped receiving those benefits. 187 The agency also
did not take any additional steps (emails, mails or phone calls) to notify the claimants and never
answered over 90% of the calls to its “Help Line.”188 In many cases, by the time notified
“fraudsters” received the agency’s message, the 30-day period to contest or appeal the fraud
determination was already passed. 189 Claimants were also not informed about the basis for
fraud suspicion and MiDAS did not allow fact-based adjudication but automatically sent them
multiple-choice questionnaires.190
Both in the Dutch Childcare Benefits and MiDAS, we observed that citizens with different
backgrounds (though possibly mostly disadvantaged groups) were unfairly treated because
they were unable to navigate digital bureaucratic and automated decision-making. Moreover,
the results produced by the automated systems were always assumed to be correct, even though
they later proved to be flawed. Existing legal frameworks allowed for this unfair treatment as
the law was formulated in strict terms and was applied by public authorities with no
consideration for the personal circumstances. In the case of MiDAS, judicial litigation ensured
the relatively short-life of this system and courts sought to correct some of the harms done. 191
In the Dutch case, administrative courts, including the highest court on this type of matters (the
Dutch Council of State) did not assist citizens.192 The lack of scrutiny, accountability, excessive
187
Id.
188
Ibid. Out of the last 50,000 calls the “Help Line” received before the Auditor General conducted the audit, “not
a single one had been answered or returned.”
189
Peter Ruark, Falling Short 2017: Michigan’s Unemployment Insurance Continues to Neglect Many Workers
Who Need It, January 2018, Michigan League for Public Policy, https://mlpp.org/report-falling-short-2017-
michigans-unemployment-insurance-continues-to-neglect-many-workers-who-need-it/
190
Cahoo v. SAS Analytics Inc., No. 18-1296 (6th Cir. 2019)
191
AI Now supra note _ at 11.
192
Dutch Parliamentary Report supra note _ at 7 (“the committee notes that for many years the administrative
justice system also played a significant part in perpetuating the ruthless application of the legislation on
childcare allowance, over and above what was prescribed by law. In doing so, the administrative justice system
neglected its important function of safeguarding the legal rights of individual citizens.”) See also Dutch News,
Council of Europe Slams the Netherlands over Benefit Scandal (October 11, 2021) at
https://www.dutchnews.nl/news/2021/10/council-of-europe-slams-the-netherlands-over-benefit-scandal-
failings/. See also the report produced by the Dutch judiciary reflecting on how courts failed citizens in the
Dutch Childcare Benefit Scandal, De Rechtspraak [The Dutch Judiciary], Rapport Werkgroep Reflectie

focus on mass-scale anti-fraud policies and efficiencies made public authorities blind for the
possible vulnerabilities of the system and its citizens.
IV. ADMINISTRATIVE DIGITAL EMPATHY
This Part elaborates on the concept of administrative empathy and explains how empathy can
be used ex ante and ex post government transactions to ensure that the digital administrative
state rethinks how digitization and automation are used, to balance abstract public values (e.g.,
efficiency) with citizen needs, and ensure that public authorities act meaningfully when
interacting with computational algorithms. Indeed, the administrative state is the “sensory
organ” of government: Public authorities gather information, have direct contact with citizens,
and make sense of “on-the-ground conditions”.193 In the digital era, empathy can ensure that
this continues to be the case.
A. What Administrative Empathy Is Not
Administrative law is inherently characterized by multiple paradoxes. It must protect the public
interest and at the same time individual rights, even though the balance between them is often
a complex equation. It should be inclusive and yet, it is increasingly ruled by efficiency
concerns.194 It should promote justice but bureaucracy establishes obstacles that make it
difficult for administrative actors to always pursue justice. In the words of Jerry Mashaw, “in
Toeslaggenaffaire Rechtbanken: Recht Vinden bij de Rechtbank [Finding Justice at the Court] (2021) at
https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Raad-voor-de-
rechtspraak/Nieuws/PublishingImages/WRT%20rapport%20Recht%20vinden%20bij%20de%20rechtbank%20
DEF%20051021.pdf
193
Noveck supra note _ at 124. Adrian Vermeule, “The Administrative State: Law, Democracy, and Knowledge,”
in The Oxford Handbook of the United States Constitution, ed. Mark Tushnet, Mark A. Graber, and Sanford
Levinson (Oxford: Oxford University Press, 2013).
194
Jensen & Pedersen supra note _.

a legal culture largely oriented toward court enforcement of individual legal rights,
“administration” has always seemed as antithetical to “law” as “bureaucracy” to “justice.”195
Administrative empathy is not a concept that aims to resolve contests between these or other
conflicting values. Instead, administrative empathy can help guide public authorities and
judges when trying to understand different viewpoints, with enhanced humility.196
“Empathic automation” or “emotional AI” are not oxymorons but they do not resemble
human uses of empathy which refer to “commonality of feelings” or “feeling into” someone
else’s situation. Automated empathy refers to the “use of computational means to infer and
“feel into” psycho-physiological states (emotions, moods, affects, fatigue, attention,
intention.”197 Emotion-recognition systems have been frowned upon in the European context,
namely in the proposed EU AI Regulation because of their potential to manipulate humans. 198
This subject and the essence of emotion-recognition systems do not fit within the scope of this
Article. However, its existence is a matter to consider in the future for the following reason. It
would be risky to try to replicate empathy in the human sense of recognizing emotion and
“feeling for others” in automated systems. This could result in the manipulation of citizens and
public servants. However, the fact that automated systems can acknowledge the existence of
different subjective factors is an important element. The development of empathic automated
systems can be helpful if we interpret empathy not only as the exercise of having compassion
for others or experiencing emotions of commonality but as an interpretation tool.
195
JERRY MASHAW, BUREAUCRATIC JUSTICE 1 (1983).
196
Bandes (2017) supra note _ at 194.
197 Andrew McStay, Automating Empathy: Social Impact, Mediated Emotion and Subjectivity, IEEE Society on
Social Implications of Technology (May 27, 2021), https://ieeetv.ieee.org/channels/ssit/automating-empathy-
social-impact-mediated-emotion-and-subjectivity (last accessed on September 3, 2021). Andrew
McStay, Emotional AI and EdTech: serving the public good?, 45(3) LEARNING, MEDIA AND
TECHNOLOGY 270 (2020).
198
Frederieke Reinhold & Angela Müller, AlgorithmWatch’s Response to the European Commission’s Proposed
Regulation on Artificial Intelligence—A Major Step with Major Gaps, Algorithm Watch (April 22, 2021)
(providing an overview of some of the key prohibitions of high-risk AI systems including subliminal ones and
offering some criticism to the European Commission’s proposal).

B. Empathy Ex Ante
Empathy in law is traditionally analyzed in the context of judicial decisions, after “the harm
has been done.” However, this Article argues that understanding a certain legal situation from
the perspective of vulnerable citizens implicates transforming legal systems and policies from
within. It starts thus by rethinking digital government strategies. This Part presents two ways
of approaching ex ante empathy: first, by rethinking the digitization and automation of
government services. This includes questioning the need for digitization and automation,
creating opportunities for meaningful contact with government, and devising valid offline
alternatives for citizens who cannot engage with digital government and automated
government. Second, ex ante empathy can be promoted through more inclusive communication
and design of platforms, institutions, and reducing the distance between governments and
citizens. Both strategies aim to redesign digital government and automation with a diverse
citizenry in mind.199
1. The Right to Meaningful Contact with Government
The plea for a more human digital government does not amount to the disappearance of digital
tools. Digitization and automation have become inescapable realities in government but not
everywhere. This Article proposes to rethink the need for digitization and automation by
balancing the costs and benefits of the digital administrative state. In this “cost-benefit
199
For a thorough human-rights study of the digital divide, the importance of accounting for diversity in the study
of the digital divide, see generally ANNE PEACOCK, HUMAN RIGHTS AND THE DIGITAL DIVIDE (2019).

analysis,” the impact of technology on human lives (e.g., discrimination) has to be taken into
account. The EU has taken a first step in this direction in its AI Regulation proposal by
proposing a ban on certain automated systems (e.g., facial recognition in publicly accessible
areas) with the potential of manipulating or discriminating citizens. 200 This strict approach to
the regulation of AI can inspire other areas of government to rethink the need for indiscriminate
automation.201 This is the case of the automation of fraud policies in social welfare which are
difficult to automate with sufficient empathy.202 Poverty is inherently a situation of
vulnerability which has many different causes, consequences, and cannot be reduced to
categories. It requires a fundamentally human approach with minimal automation. 203 As Part
III has demonstrated, existing systems that rely on historical data tend to be biased and target
ethnic minorities and marginalized groups.
The legitimacy of government is driven by trust, public values, fairness, and democracy. 204
In the context of the digital administrative state, the quest for greater legitimacy does not give
citizens the right to always have personal contact with public servants. 205 However, contact
with government should be more meaningful than an automated email in the case of life-
changing government transactions. This could entail the consolidation of government hotlines
with more meaningful assistance for citizens. 206 Existing rules that seek to keep a “human-in-
200
Proposal for A Regulation of the European Parliament and of the Council Laying Down Harmonised Rules
on Artificial Intelligence (Artificial Intelligence Act) And Amending Certain Union Legislative Acts,
Com/2021/206 Final, at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021PC0206
201
For a reflection on the future regulation of AI, including the value of human empathy when compared to
automated systems, see François Candelon, Rodolphe Charme di Carlo, Midas De Bondt & Theodoros Evgeniou,
AI Regulation Is Coming, Harvard Business Review (September 2021) at https://hbr.org/2021/09/ai-regulation-
is-coming
202
Id.
203
For a reflection on the ethics framework of AI with regard for the specificities of different applications, see
European Parliament, The Ethics of AI: Issues and Initiatives, European Parliament (2020) at
https://www.europarl.europa.eu/RegData/etudes/STUD/2020/634452/EPRS_STU(2020)634452_EN.pdf
204
Calo and Citron supra note _
205
On the relevance of the medium of communication between government and citizens, see generally Bruce
Bimber,The Internet and Citizen Communication With Government Does the Medium Matter?, 16 Political
Communication 409-(1999) DOI: 10.1080/105846099198569
206
This was also suggested by the Dutch Council of State supra note _.

the-loop” in the context of automated decisions do not suffice. Research has shown that the
technical medium used for communication is not always devoid of political meaning and that
human public servants may refrain from correcting possible negative implications and look
critically at the results produced by technology. 207 A legitimate government is one that creates
clear avenues for citizens to connect with those that represent them and decide on their affairs.
As the following subsection shows, better communication with citizens is also part of the
solution to government’s legitimacy deficit. 208 However, it is not everything. An empirical
study showed that “government and politicians remain[ed] alien to many members of
society….government suffe[red] from a lack of authenticity and an inability to show emotion,
be human or demonstrate empathy.”209
Ex ante empathy can be thus translated into different strategies that can make government
more human, empathic, and hence more legitimate, including building institutions within
government that—regardless of the level of digitization of the administrative state—still reach
out to citizens and maintain relationships with people. In the book Radical Help, Hillary
Cottam argues that social welfare systems should be profoundly reformed by establishing
human connection with citizen. 210 Cottam claims in her book that when people feel supported
by strong human relationships change happens. 211 Rather than creating additional distance with
technology, governments should rethink where technology can truly be of added value, where
it can deteriorate the rights of citizens (for example, by targeting minorities), and how to
introduce meaningful human elements that make the digital administrative state more
legitimate.
207
Langdon Winner, Do Artifacts Have Politics? 109 Daedalus 121 (1980) (discussing the way in which technology
may embody power, authority, and politics). The interaction between humans and AI remains complex, see Kailas
Vodrahili, Tobias Gerstenberg & James Zou, Do Humans Trust Advice More If It Comes from AI? An Analysis of
Human-AI Interactions (July 14, 2021) at https://arxiv.org/abs/2107.07015
208
See also Calo & Citron supra note 103.
209
CENTRE FOR PUBLIC IMPACT, FINDING A MORE HUMAN GOVERNMENT 5 (2018).
210
See generally Hillary Cottam, Radical Help (2020) (chapter 1 discusses in particular the failures of
longstanding welfare policies).
211
Id.

2. Inclusive Communication and Design
Digital technology and consequently, digital government will only be inclusive when all
citizens have comparable Internet access, skills, and ability to engage with technology on
equally critical terms. 212 This means that digital government has to work on overcoming both
its bureaucratic and digital divide barriers.
The digitization of governments in most Western countries has been based on paper-based
bureaucracies which were first digitized and then automated. 213 This was practical at first
because it did not require transforming institutions, procedures, agencies, and create digital
government from scratch. However, accessible, inclusive, and truly empathic digital
government requires efforts by institutions to go beyond this strategy. This requires
institutional and cultural changes, greater interactions between agencies instead of maintaining
the so-called “silo culture,” more training for public servants, and employing digital technology
that offers a good balance between government interests and citizen needs. 214 Thus far, only
one Western country has designed its digital government to be truly transformational: Estonia.
Estonia is one of the world’s most advanced countries in digital government. 215 Estonia has a
unique model which entails 100 percent digitization of government services with a seamless
212
See Olivier Sylvain, Network Equality 67 HASTINGS L. J. 443 (2016).
213
Belanger, France and Carter, Lemuria (2012) "Digitizing Government Interactions with Constituents: An
Historical Review of E-Government Research in Information Systems," Journal of the Association for
Information Systems, 13(5), .
DOI: 10.17705/1jais.00295
214
BENJAMIN ROSETH ET AL., WAIT NO MORE: CITIZENS, RED TAPE, AND DIGITAL GOVERNMENT 155 (2020); B.
Sellinger, e-Government in a Federal State: The Case of the Introduction of e-Government in Germany in the
Early 2000s. In: H. Rahman (Ed.), Handbook of Research on E-Government Readiness for Information and
Service Exchange: Utilizing Progressive Information Communication Technologies, 381-394.
215
For a thorough overview of the Estonian digital government model, see Paloma Krõõt Tupay, Estonia, the
Digital Nation - Reflections of a Digital Citizen’s Rights in the European Union, 6 Eur. Data Prot. L. Rev. 294
(2020).

use of technological and management tools that do not burden citizens. 216 For example, the
Estonia’s Public Information Act prohibits institutions from requesting user information which
is already stored in a data repository connected to the country’s primary e-government system
called X-Road.217 Moreover, instead of applying for benefits (e.g., child benefits for the birth
of a child), citizens receive most of them automatically because children also have a digital
identity.218 It has been estimated that digitization has saved an average of 30 minutes per
government transaction per citizen or 5.4 working days per year per person. 219 Estonia also
provides advanced digital literacy education to citizens from a young age. 220 The success of
the Estonia model is the result of a combination of factors (small country, solid Internet
infrastructure, constitutional framework) which cannot be easily reproduced in a larger and
more diverse jurisdiction. Some aspects of Estonian digital government can serve nonetheless
as an inspiration for other countries like the United States: the focus on broad institutional
changes rather than on specific initiatives regardless of initial agency resistance; the
coordination between the public and private sectors; and the holistic approach to government
which includes the imperative to rethink every decade and a half the need for new reforms.221
Moreover, the Estonian Constitution establishes in Paragraph 44 that Estonia is an open
information society which translates into the fact that everyone has to have free access to public
information and state agencies and local governments have the duty to informcitizens about
their activities and give them access to information the institutions own about them. 222
216
BENJAMIN ROSETH ET AL., WAIT NO MORE: CITIZENS, RED TAPE, AND DIGITAL GOVERNMENT 158 (2020).
217
WORLD BANK GROUP. DIGITAL DIVIDENDS 279 (2016).
218
Paloma Krõõt Tupay, Estonia, the Digital Nation - Reflections of a Digital Citizen’s Rights in the European
Union, 6 Eur. Data Prot. L. Rev. 294, 297-8 (2020)
219
WORLD BANK GROUP. DIGITAL DIVIDENDS 16, 118, 279 (2016) (discussing the transformation introduced by
digital governments. In the case of Estonia, digital signatures alone allowed for a 15-minute time saving per
government transaction).
220
E-Estonia, Digital Competences, at https://e-estonia.com/wp-content/uploads/2020mar-faq-a4-v02-
digitalcompetences-1.pdf
221
Meelis Kitsing, Explaining the e-Government in ESTONIA 429 PROCEEDINGS OF THE 2008 INTERNATIONAL
CONFERENCE ON DIGITAL GOVERNMENT.
222
Tupay supra note 250 at 299-300.

In Europe, the European Commission and its Member States have invested over the last
years in the development of guidelines for simple and inclusive digital government. An
illustration of a simple policy measure that is designed to approximate citizens from
government is the French program that seeks to create greater citizen trust in government and
the use of digital technology. 223 The French government created a website (“oups.gov.fr”) with
some of the most common mistakes made by citizens when engaging in a government
transaction (e.g., applying for a benefit) or when a certain life event required them to take
bureaucratic action before government (e.g., moving, birth of a child, unemployment, death of
a loved one).224 This French platform includes multiple checklists in simple language. 225
User-friendly and simple design of technological tools (e.g., platforms, pre-filled forms)
are also simple strategies which in theory could lower access barriers to digital government. 226
These solutions require broad participation because they ask citizens to trust almost blindly
government and the information that is presented before them. This could mean that citizens
could underestimate the complexity of the system and applicable regulations. 227 For citizens
who do not trust government or technology, user-friendliness without any type of human
assistance may raise additional suspicion and rejection of the system.
Solutions such as the French oups.gov.fr. can be criticized because they will only reach
those who are already online and are able to find government platforms. However, it is a
significant step in the direction of more ex ante empathy as it does not place all the burdens on
223
ANSSI, Developper la Confiance Numerique [Develop Trust in Digital Technology] at
https://www.ssi.gouv.fr/agence/missions/rapports-dactivites/nos-publics-et-nos-actions_v2016/developper-la-
confiance-numerique/
224
https://www.oups.gouv.fr/
225
Id.
226
ANSSI, Developper la Confiance Numerique [Develop Trust in Digital Technology] at
https://www.ssi.gouv.fr/agence/missions/rapports-dactivites/nos-publics-et-nos-actions_v2016/developper-la-
confiance-numerique/. In the United States, see New America, Designing Accessible and Inclusive Digital
Public Infrastructure, at https://www.newamerica.org/digital-impact-governance-initiative/blog/designing-
accessible-and-inclusive-digital-public-infrastructure/
227
DOTEVERYONE, PEOPLE, POWER AND TECHNOLOGY: THE 2018 DIGITAL UNDERSTANDING REPORT (2018), at
https://www.doteveryone.org.uk/report/digital-understanding/

citizens on gathering all relevant information but it creates a one-stop-shop for government
information.
The creation of public programs of digital assistance and digital literacy training for adults
are additional instruments which can help vulnerable citizens comply with their obligations.
C. Empathy Ex Post
This Section discusses the need to consolidate citizens’ procedural rights by adopting a “duty”
to forgive and meaningfully assist citizens facing exceptional circumstances. These
circumstances can only be decided on a case-by-case basis and guided by a proportionality
reasoning but they can 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. This duty could entail forgiving citizens for missing a delay,
providing them with additional time to provide evidence, hold additional hearings to better
understand their positions or invert the burden of proof so that the public authority (rather than
the vulnerable citizen) has to prove elements detected by automated systems. This empathic
approach toward citizens is inspired by the idea that administrative law should be imbued with
different perspectives to be truly empathic and also fact-based. This proposal also draws on
recent developments in Dutch and French law.
In the Netherlands, administrative law aims in theory to “compensate” for the inequality
in power between government and citizens. 228 However, as documented in Part III, also in the
Netherlands, this room for empathy is slowly fading with automation due to the increasingly
228
Ben Schueler, De Awb-rechter na 25 jaar: een karakterschets, De Nederlandse Vereniging voor Rechtspraak
(2019) at
https://trema.nvvr.org/uploads/documenten/downloads/2019-01_Schueler_De-Awb-rechter.pdf.

limited—and less meaningful—human intervention of public servants. The Dutch National
Ombudsman has criticized the rapid but fragmented switch to digital government which
requires citizens in need go to great lengths to claim online all the benefits they are entitled
to.229 Digitization has not resolved this siloed and compartmentalized feature of welfare
benefits. Rather, it has worsened it for vulnerable populations. 230 Multiple official notifications
are now only sent online and the European Court of Human Rights recently considered this
shift to digital notifications proportionate, considering the high percentage of Internet access.231
Nevertheless, citizens who undergo challenging circumstances (e.g., extreme stress due to
severe long-term illness, poverty) can easily lose track of e-mail notifications and miss
important deadlines (for example, to submit a statement of objections or appeal an
administrative decision).
In 2020, the Administrative Division of the Dutch Council of State which traditionally
maintained a strict position regarding breach of delays, revisited its position. 232 This Court
acknowledged that special circumstances should sometimes be accepted to excuse citizens
using governmental portals for not appealing an administrative decision within the legal
delay.233 This case may suggest the need to adopt a more lenient and citizen-friendly approach
toward the possibility that governmental portals underperform, citizens oversee online
information or make mistakes. 234 This position is also aligned with a recent opinion of the
Dutch Council of State on good administration and digitalization of government where this
229
NATIONALE OMBUDSMAN, DE BURGER GAAT DIGITAAL (2013) at
https://www.nationaleombudsman.nl/uploads/2013170_de_burger_gaat_digitaal.pdf
230
Id.
231
Id. See also European Court of Human Rights, Stichting Landgoed Steenbergen and Others v. the
Netherlands - 19732/17, Judgment 16.2.2021, https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-
13137%22]}
232
Dutch Council of State, Administrative Jurisdiction Division (ABRvS), 22 January 2020,
ECLI:NL:RVS:2020:175. See also Annemarie Drahmann, Case note: Verschoonbare termijnoverschrijding.
Emailservice van www.overheid.nl. 86 Computerrecht (2020).
233
Id.
234
ECLI:NL:RVS:2020:175

institution underlines the need to keep providing meaningful interaction with citizens and limit
the expansion of automated services and decision-making.235
The idea of forgiving citizens for their mistakes can also be detected to a smaller extent in
French administrative law. In 2018, the French legislator recognized a right to make a one-time
mistake.236 This right to make a mistake was widely publicized and attracted a great of national
and international attention. 237 The application of this right implicates the practice of limited
empathy as the conditions for its implementation are well-defined and circumscribed to first-
time mistakes. Nevertheless, little is known outside France about its application and the risk
that this right may promise more than it actually can deliver.
The duty to try to understand the position of citizens, create a framework for forgiveness,
and convey empathy within an evidence-based context is not a panacea. Future guidance and
further reflection are needed as to identify when and how this duty should be applied. Empathy
should not amount to numerous individual exceptions that fully dismantle the efficiencies that
automated systems may give rise to and create legal uncertainty. Rather, this is a duty to expand
public authorities’ diligence in preparing administrative adjudication, gather evidence on the
fallibility of the automated system and question the possibility whether citizens could have
acted differently under those circumstances. This enhanced duty of diligence and evidence-
based empathy are especially important when preliminary steps (e.g., risk indicators) were
taken by automated systems.
However, the duty to empathize should be a duty imposed primarily on public authorities
to ensure that they are trained to be mindful of the opportunities and risks of digital technology
235
Dutch Council of State [Unsollicited Opinion on Digitization] supra note _.
236
Republique Francais, Qu’est-ce que c’est le droit a l ‘ erreur?, https://www.service-
public.fr/particuliers/vosdroits/F34677 ; See also Republique Francaise, Je m’ Informe sur le Droit a l’ erreur,
https://www.impots.gouv.fr/portail/particulier/je-minforme-sur-le-droit-lerreur
237
Kim Willsher, French Parliament Passes Law Giving Citizens the Right to Make Mistakes, The Guardian
(January 24, 2018) at https://www.theguardian.com/world/2018/jan/24/french-parliament-passes-law-giving-
citizens-the-right-to-make-mistakes

for the procedural rights of vulnerable citizens. In the digital administrative state, vulnerable
citizens who are not capable of engaging critically with digital technology, do not have data or
algorithmic literacy, and cannot afford professional advice may worsen their procedural
position.238 The central message of this attempt to flesh out administrative empathy in the
digital administrative state is thus that public authorities should redesign digital government
and adjudication systems to facilitate the contact between citizens and government and they
should not trust blindly digital technology but rather conduct meaningful investigations into
the individual situations of citizens.
CONCLUSION
Empathy has been regarded with suspicion by administrative lawyers and often reduced to
emotion. This Article has not argued for more emotion in the digital administrative state.
Emotional arguments only focus on one perspective and may impede the full understanding of
facts. Instead, this Article contends that in the digital administrative state, more than before,
we need multiple viewpoints and more attention for individual circumstances. 239 Empathy in
law requires human interventions, humane assessments, concrete human stories rather than the
abstract and strictly juristic appeal to legal principles. In an increasingly automated and
digitized world, this can be the response to the blindness of large datasets, large numbers, and
the opacity of automated systems.
238
Diana Urania Galetta, Public administration in the era of database and information exchange networks:
Empowering administrative power or just better serving citizens? 25 EUROPEAN PUBLIC LAW 171, 179-80 (2019).
239
Henderson supra note 158 at 1650.

Empathy is an important public service value but like other public values, it does not take
priority over others such as efficiency. 240 Empathy is not a goal in itself but rather a means to
make public administration more humane, democratic, and legitimate. 241 This will ultimately
help enhance the trust of citizens in government and administrative law.
Existing administrative law principles offer sufficient flexibility to accommodate many of
the challenges posed by digital government and automation. 242 Digitization and automation
have nonetheless reinforced an old problem affecting the administrative state: the bureaucratic
and complex character of administrative procedures and the inability of millions of citizens to
navigate it on adequate and equal terms. Administrative empathy is not only a solution for
digital and automated administrative systems. Human decision-makers can also be barren of
emotion, inflexible, and unwilling to listen to concerns and bend the rules to guarantee material
justice. However, only human decision-makers can choose to be empathic and design a legal
framework where vulnerable citizens feel seen and heard. Ultimately, to be human is to be
vulnerable, to err, and to empathize with others.
***
240
Jørgensen, T. B., & Bozeman, B. (2007). Public values: An inventory. Administration & Society; Beverly
Hills, 39(3), 354–359, 361–381. Molina, A. D., & McKeown, C. L. (2012). The heart of the profession:
Understanding public service values. Journal of Public Affairs Education, 18, 375–396. Dolamore supra note _ at
78.
241
Zanetti (2011) supra note _.
242
Cary Coglianese, Administrative Law in the Automated State, 150 DAEDALUS 104, 105 (2021)

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EMPATHY IN THE DIGITAL ADMINISTRATIVE STATE

In Duke Law Journal (vol. 72, 2022, forthcoming)

Electronic copy available at: https://ssrn.com/abstract=3946487

optimization of government services and automated decision-making.4 Administrative law

Electronic copy available at: https://ssrn.com/abstract=3946487

regardless of the circumstances experienced by citizens. 6 This affects disproportionately

concept which is simultaneously universal and particular. 8

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cognitive limitations.10 If to err is human, so is to be vulnerable. 11

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should be provided to vulnerable citizens.17

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isolation, and the negative impact of digital illiteracy.23

administrative value and a condition to regulatory excellence. 26 In addition, recent literature

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need for a more inclusive approach to digital government. 28

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This Article contributes to scholarly debates on algorithmic biases, discrimination, and

administrative state. 32 To the literature on compassion and law, it adds an evidence-based

on how to operationalize empathy in the digital administrative state. 33

Electronic copy available at: https://ssrn.com/abstract=3946487

the dehumanization of government, the stigmatization of poverty, and the disappearance of

room for empathy in the digital administrative state. 35

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significant revisions of administrative procedures, channels for additional information and

institutional measures adopted in Estonia, the Netherlands, and France.

citizens’ abilities to exercise their rights.

I. BUREAUCRACY, THE DIGITAL ADMINISTRATIVE STATE AND VULNERABLE CITIZENS

Electronic copy available at: https://ssrn.com/abstract=3946487

A. The Weight of Bureaucracy

important sectors of the economy (e.g., telecommunications, Internet, securities, agriculture,

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administrative law, particularly influential and incorporated throughout continental Europe,

bureaucracy on vulnerable populations; the tension between administrative law as a guarantee

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to help us understand a system’s willingness to incorporate notions of empathy. 46

governments closer through 24/7 communication, smartphone applications, and platforms. 47

administrative systems and their heavy and hierarchical bureaucratic machines.

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appointments were also unable to solve. 50

citizens, the incomprehensibility of rulemaking and public administration are accepted as a

Nevertheless, bureaucracy cannot be fully set aside: Mass democracies require

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regulation of rights and accounting for specific citizens’ needs.55

and helping citizens out of poverty. 58

2. Social Welfare and Bureaucracy

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difficult to objectify and best resolved on a case-by-case basis.60 Bureaucratic requirements to

limited resources to navigate bureaucracy.64

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veterans’ benefits system is non-adversarial and was conceived to protect veterans in a

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the necessary “bureaucratic hoop-jumping.”71

automated government decisions.

B. Digital Government and Automation

for vulnerable citizens.

1. Digitization and Automation

Digitization and automation are increasingly pervasive in government services in the

Electronic copy available at: https://ssrn.com/abstract=3946487

payments, adjudicate claims, and issue rules. 74

designed either to produce measurements or assessments regarding a particular case, or to make

an administrative decision in lieu of a civil servant. 75 While some areas of decision-making

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