governmental decision making

Automating systems can assist individuals making administrative decisions or help identify relevant criteria, evidence or particular issues for consideration. Automation has the potential to make decision-making more accurate, consistent, cost-effective, timely and diminish the risk the decision will be invalidated due to improper motivations or bad faith. However, automated systems raise difficult questions about authorisation and reviewability of decision-making by a non-human agent; there are difficulties applying legislation and resolving complexities and ambiguity; and potential for coding errors. There is still potential for jurisdictional error if there is an error in the automation. This is illustrated by the difficulties associated with the Commonwealth Department of Human Services and Centrelink’s online system for raising and recovering social security debts. Machine learning through “Big Data” is a branch of Artificial Intelligence that allows computer systems to learn directly from examples, data and experience. The article analyses the Commonwealth, NSW and South Australian data-sharing legislation and the need for protection for vulnerable people, such as children or people with a mental illness, transparency and accountability.

Federalism: A Dialogue, written by David L. Shapiro, reflects the extraordinary combined force of scholarship and advocacy by a master of both.  Asked to deliver the Julius Rosenthal Lectures at Northwestern University School of Law in 1994, Professor Shapiro saw that the three-lecture series offered the opportunity to structure a treatment of federalism in an adversary format, without losing the balanced and honest presentation of the scholar.  In the first lecture, he states the case for the “nationalist,” in the second, for the “federalist,” and in the third he offers a synthesis.

The direct draw upon the judiciary’s adversary model allows Shapiro’s hand to move free from the clutter of balancing-as-you-go.  This model, as applied in the first two lectures, allows him to present each case in its most powerful form, to state the polarities before turning to the gray areas of current debate.  The result is clarity and balance.

The debate about federalism is at least as old as the republic, but this work arrives at a particularly propitious time.  There is a large discontent with remote governmental decisionmaking.  There is a heated debate now in progress about the “best” location of decisionmaking for specific social problems.  Professor Shapiro’s dialogue is about the meaning of “best.”

The book offers a superb defense of federalism, a lasting contribution.  His writing proves the power of Socratic process, so long ago appropriated by the legal profession.  Moreover, federalism ultimately wears its strongest armor as a constitutionally required process.  Professor Shapiro’s book leaves the reader painfully aware of how often that assertion is undervalued and its wisdom missed.