Paul L. Caron
Dean




Friday, November 19, 2021

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Automated Government For Vulnerable Citizens — Intermediating Rights

This week, Sloan Speck (Colorado; Google Scholar) reviews a new paper by Sofia Ranchordás (University of Groningen) & Luisa Scarcella (University of Antwerp), Automated Government for Vulnerable Citizens: Intermediating Rights, 30 Wm. & Mary Bill Rts. J. ___ (2021).

Sloan-speckIn Automated Government for Vulnerable Citizens, Sofia Ranchordás and Luisa Scarcella survey the landscape of digital governmental services, concluding that, while these automated mechanisms may enhance convenience and efficiency for some, they inflict differential effects on vulnerable populations and often entrench existing disparities. Prominent in the authors’ analysis (and in governments’ digital transitions) is tax compliance: in particular, electronic return preparation and algorithmic enforcement. Ranchordás and Scarcella conclude by offering various prescriptions to ameliorate the digital revolution’s disproportionate harms and promote humanity—literal and metaphorical—in public administration.

Ranchordás and Scarcella write within a large—and incredibly important—literature at the intersection of law, technology, and inequality. This literature establishes that digital government has relatively predictable effects: institutional, systemic, and structural advantage and disadvantage accrue among categories based on age, education, economic position, immigration status, and racial or ethnic identity—and these accruals often are compounded by explicit and intentional discrimination. The revolution is entirely televised, and only those who already possess a functioning set will experience it.

Where Ranchordás and Scarcella’s analysis really excels is in the breadth of its approach. The authors mobilize international examples that cross traditional subject-area boundaries to illustrate similarities and differences in how the digital divide plays out on-the-ground. Indeed, the article’s three centerpiece case studies are exquisitely dispiriting: the United States’ TurboTax fiasco, Michigan’s abhorrent experience with the automated auditing of unemployment benefits, and the Dutch childcare benefits scandal that resulted in the Prime Minister’s resignation. Juxtaposing these events is illuminating work.

To some extent, the shift towards digital government represents merely the most recent degrees in a long arc of Taylorist tendencies in public (and private) administration. There is some beauty (and more than a little audacity) in the idea that great internal efficiencies may arise from outsourcing regulatory burdens to users. Instead of building administrative infrastructure, rely on voluntary compliance. No need for internal monitoring when you have radical transparency. Web portals and electronic information management facilitate and accelerate these trends. As Ranchordás and Scarcella note, today’s digital government is a product of the paper era—as well as neoliberal tendencies towards privatization and fiscal austerity—rather than a fundamental reimagining of the relationships among individuals, the polity, and the state. This insight contextualizes the problems of automated governance as perhaps less about typology and more about degree—of persistence in the face of pluralism—and policymakers might approach reforms accordingly.

Similarly, Ranchordás and Scarcella implicate questions about the future trajectory of digital government. If today’s moment is transitional, then individuals might find adequate redress in some of the more procedural safeguards advocated by the authors: reversing privatization for core government functions, ensuring “equal” enforcement regimes, and providing systematic and substantive review of automated processes. These safeguards might even shape the evolution of digital government in positive ways. But if today’s landscape is more of a steady state (or a local equilibrium, or a dead-end), then we might consider more radical interventions. One could imagine a Frank Herbert-style ban on thinking machines, supplemented by an expert cadre of bureaucratic mentats. Calls to the IRS would be a lot more interesting. But, alternatively, we might rethink our choice and design of tax instruments in light of trends in digital government—in effect, viewing the information revolution as integral, rather than supplemental, to public policy.

Finally, Ranchordás and Scarcella foreground the role of empathy in subject-state relationships. The authors highlight France’s recent implementation of a limited, “far from perfect” right to make mistakes in government interactions. Ignorance of the law is an excuse, but only one time and only without adverse intent. These changes evoke broader principles that government should operate under a presumption of individuals’ good faith, and that minor errors or infractions should not be prosecuted harshly. Think anti-broken-windows, where the windows are the rules governing who can claim a dependent child. For me, this value—an emphasis on empathy and forgiveness in governance—is perhaps the most critical takeaway from Ranchordás and Scarcella’s article.

Overall, Ranchordás and Scarcella provide a masterful overview of digital government’s implications for institutional, systemic, and structural inequality. The authors illustrate their claims with a variety of examples from the United States and abroad, and from taxation and other areas of public provisioning. The effect is extraordinary, and their article should be required reading for commentators and policymakers at all levels when assessing public policy.

Here’s the rest of this week’s SSRN Tax Roundup:

https://taxprof.typepad.com/taxprof_blog/2021/11/weekly-ssrn-tax-article-review-and-roundup-speck-reviews-automated-government-for-vulnerable-citizen.html

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