This brief chapter, closing Part I, concludes that the individual is procedurally involved in such contexts to a minor extent and offers reflections on the reasons for this. It discusses the culture of state-centrism at the Court, its passive approach to procedural mechanisms, and certain fears it likely has. The reasons are challenged in this chapter, which ends with a brief word on how transparency practices can also contribute to the further integration of individuals in the procedural law of the World Court.

This introductory chapter explains the need for adopting an overarching perspective to the allocation of limited rights. Although the applicable legal frameworks may suggest otherwise, the awards of public contracts, authorisations, subsidies or government sales share common characteristics in the event that the number of rights available for grant is limited. These similarities are nowhere as manifest as with regard to the question of whether governments should use some form of competitive tendering when allocating these ‘limited rights’. Although the public interests involved in the allocation of these limited rights differ in substance and respective weight, competitive procedures should aim to optimise the pursuit of the different public interests involved. Using Mark Moore’s theory of creating and recognising public value, this chapter provides a general reflection upon the distinct role of the legal framework for allocating governments in solving this optimisation problem.

This chapter roots the authors' insights about automated legal guidance in a broader examination of why and how to address the democracy deficit in administrative law. As this chapter contemplates the future of agency communications, it also explores in greater detail the possibility that technological developments may allow government agencies not only to explain the law to the public using automated tools but also to automate the legal compliance obligations of individuals. While automated legal compliance raises serious concerns, recent examples reveal that it may soon become a powerful tool that agencies can apply broadly under the justifications of administrative efficiency. As this chapter argues, the lessons learned from our study of automated legal guidance are critical to maintaining values like transparency and legitimacy, as automated compliance expands as a result of perceived benefits like efficiency.

The Conclusion emphasizes the growing importance of automated legal guidance tools across government agencies. It crystalizes the insight that automated legal guidance tools reflect a trade-off between government agencies representing the law accurately and presenting it in accessible and understandable terms. While automated legal guidance tools enable agencies to reach more members of the public and provide them quick and easy explanations of the law, these quick and easy explanations sometimes obscure what the law actually is. The Conclusion acknowledges and accepts the importance of automated legal guidance to the future of governance, and, especially in light of this acknowledgement, recommends that legislators and agency officials adopt the policy recommendations presented in this book.

As Chapter 4 demonstrated, automated legal guidance often enables the government to present complex law as though it is simple without actually engaging in simplification of the underlying law. While this approach offers advantages in terms of administrative efficiency and ease of use by the public, it also causes the government to present the law as simpler than it is, leading to less precise advice and potentially inaccurate legal positions. As the use of automated legal guidance by government agencies is likely to grow in the future, a number of policy interventions are needed. This chapter offers multiple detailed policy recommendations for federal agencies that have introduced, or may introduce, chatbots, virtual assistants, and other automated tools to communicate the law to the public. Our recommendations are organized into five general categories: (1) transparency; (2) reliance; (3) disclaimers; (4) process; and (5) accessibility, inclusion, and equity.

The Introduction presents an overview of the use of automated legal guidance by government agencies. It offers examples of chatbots, virtual assistants, and other online tools in use across US federal government agencies and shows how the government is committed to expanding their application. The Introduction sets forth some of the critical features of automated legal guidance, including its tendency to make complex aspects of the law seem simple. The Introduction previews how automated legal guidance promises to increase access to complex statutes and regulations. However, the Introduction cautions that there are underappreciated costs of automated legal guidance, including that its simplification of statutes and regulations is more likely to harm members of the public who lack access to legal counsel than high-income and wealthy individuals. The Introduction provides a roadmap for the remainder of the book.

This chapter sets forth how government agencies are using artificial intelligence to automate their delivery of legal guidance to the public. The chapter first explores how many federal agencies have a duty not only to enforce the law but also to serve the public, including by explaining the law and helping the public understand how it applies. Agencies must contend with expectations that they will provide customer service experiences akin to those provided by the private sector. At the same time, government agencies lack sufficient resources. The complexity of statutes and regulations significantly compounds this challenge for agencies. As this chapter illustrates, the federal government has begun using virtual assistants, chatbots, and related technology to respond to tens of millions of inquiries from the public about the application of the law.

This chapter illuminates some of the hidden costs of the federal agencies’ use of automated legal guidance to explain the law to the public. It highlights the following features of these tools: they make statements that deviate from the formal law; they fail to provide notice to users about the accuracy and legal value of their statements; and they induce reliance in ways that impose inequitable burdens among different user populations. The chapter also considers how policymakers should weigh these costs against the benefits of automated legal guidance when contemplating whether to adopt, or increase, agencies’ use of these tools.

This chapter describes the results of the authors' research of automated legal guidance tools across the federal government, conducted over a five-year period from 2019 through 2023. The authors first began this study in preparation for a conference on tax law and artificial intelligence in 2019, and were able to expand it significantly, under the auspices of the Administrative Conference of the United States (ACUS), in 2021. ACUS is an independent US government agency charged with recommending improvements to administrative process and procedure. The goals of this study were to understand how federal agencies use automated legal guidance and to offer recommendations based on these findings. During their research, the authors examined the automated legal guidance activities of every US federal agency. This research found that agencies used automation extensively to offer guidance to the public, albeit with varying levels of sophistication and legal content. This chapter focuses on two well-developed forms of automated legal guidance currently employed by federal agencies: the US Citizenship Immigration Services’ “Emma” and the Internal Revenue Service’s “Interactive Tax Assistant.”

This chapter explores how automated legal guidance helps both federal agencies and members of the public. It outlines several specific benefits, including administrative efficiency, communication of complex law in plain language, transparency regarding agency interpretations of the law, internal and external consistency regarding agency communications, and public engagement with the law.

This chapter identifies and explores a central feature of automated legal guidance: “simplexity.” As this chapter introduces this term, simplexity occurs when the government presents clear and simple explanations of the law without highlighting its underlying complexity or reducing this complexity through formal legal changes. Automated legal guidance inherently relies on simplexity as a result of the tension between the complexity of the law and the need of agencies to explain the law in simple terms. In creating the law, the federal government must address complex problems, and it often does so by creating legislation that is replete with errors, ambiguities, and problems. This disconnect between complex federal law and agencies’ need to explain the law to the public in simple and understandable ways forces agencies to rely on simplexity. Automated legal guidance only exacerbates the need for simplexity, because when individuals use automated online tools offered by government agencies, they expect the explanations to be even simpler, more straightforward, and easier to apply than would be the case if they were relying upon written agency publications.

This chapter describes interviews the authors conducted with federal agency officials about their use of automated legal guidance. This chapter offers insights gained from these interviews, including regarding the different models that agencies use to develop such guidance, their views on the usability of such guidance, the ways that agencies evaluate the guidance, and agencies’ views on successes and challenges that such guidance faces.

Judicial actions in the courtroom remain for the most part off the record and hard to discern. Moreover, judicial settlement practices in the United States, for example, can take place in judicial chambers, far from the public eye. Thus there is a need for physical presence of researchers in public hearings to understand what judges do today in the age of vanishing trials. Researchers of this study entered courts in London, Florence, and Tel-Aviv. The various judicial conflict resolution practices that emerged in Israel’s most active first-instance court, in Tel-Aviv, provide a new perspective on power in the courtroom, identifying new forms of legitimation and justice developed by judges as they perform their settlement-promoting roles. In addition, we discuss an alternative model, found in the Florence Court, where judges were only recently permitted to use settlement practices. There the judges are supported by interns who screen cases before trial to examine whether they may be appropriate for mediation. In court, judges may offer mediation to the parties and explain their reasoning for doing so but will usually not try to settle the cases themselves. Lastly, we showcase intervention styles that offer new visions for the judicial role.

This chapter examines the ability to obtain government information through the operation of freedom of information legislation in relation to AI data in the United States, the United Kingdom and Australia. Freedom of Information (FOI) legislation provides a potential avenue of obtaining crucial information about the software used to automate decisions, the circumstances in which it was created or purchased, the materials that were used to train it, and any tests run to gauge its accuracy.

This chapter develops a framework for algorithmic governance, including considerations of the nature and consequences of the decision through processes of impact assessment. It analyzes ex ante AI design issues, such as mechanisms for sourcing technology through departmental or agency development or procurement processes, the calibration of error rates, level of human oversight, and participatory processes. Following this, the chapter considers the implementation of models of internal and external algorithmic auditing. The chapter then canvasses the trend towards centralized coordination of AI policies and principles across government, both through horizontal mechanisms of central agencies and regulators and vertical arrangements at the supranational and international organizational level imposed upon nation states. It also discusses transparency measures, including central publication of algorithmic tools, and individual notification and explanation of automated decisions.

While the role of judges has changed dramatically due to the vanishing trial phenomenon, the change has generally slipped under the radar. The extent and nature of the transformation of judicial roles usually cannot be deduced from reading legislation or official public legal records. This stands in stark contrast to the information age, in which a wealth of public information and a forthcoming attitude toward supplying additional information might be hoped for. In this chapter, we describe the transparency problem and our efforts to persuade courts to divulge information. Notable, this problem, which confronted us as researchers, is compounded in the case of individual litigants who have fewer means to surmount it. We describe the methodological approach that developed in the course of our research to surmount the data challenge. We show the strengths and weaknesses of each research method that we used and the way in which combined research methods have an added value, compensating for weaknesses and uncovering blind spots. By conducting court observations, coding actual court files, and analyzing them quantitatively, while interviewing judges and other legal actors, we were able to obtain a rich picture of the trajectory of cases as they move toward settlement.

In recent litigation, insurers have argued that state laws that mandate data reporting violate their insurance contracts. While not explicitly framed in freedom of contract terms, their argument reflects a recent trend in lower courts, which see freedom of contract principles as supporting ERISA preemption claims. These courts treat state regulations infringe on the insurers’ abilities to promulgate contracts of their choosing.

This Essay argues that a better approach to considering freedom of contract should consider whether the legislation at issue addresses bargaining imbalances that undermine fair contracting. That approach reflects arguments made in the context of ERISA litigation in the 1990s, where insurers claimed that state laws that required them to accept into their network any provider that met their terms and conditions were preempted by ERISA. States responded that such laws supported freedom of contract between patients and providers, and to correct market imbalances.

In the context of data reporting laws, similarly, access to data corrects market imbalances which undermine contracting between health plans, providers, and consumers. Accordingly, ongoing Biden Administration efforts to improve data transparency should be strengthened. These proposed regulations seek voluntary submission. However, voluntary submission presents a range of problems: mandated data collection is needed precisely to maintain robust contractual arrangements in the private market.

The fast-growing clinical research outsourcing over the course of the past decade has attracted the active involvement of private equity buyers to the “business” of Clinical Research Organizations (CROs). The fragmentation of pharmaceutical services through CROs offers an opportunity to lower the financial risk of drug development in a highly critical industry. Justified by the operational efficiency that integrating assets and services to decrease costs even further may represent, private equity has recently demonstrated an appetite for vertical integrations to expand the geographic, patient, and service reach of clinical research sites. Since private equity managers have the incentive to maximize financial returns, gaining greater access and control of patient identification, enrollment and retention, and quality protocols may pose significant equity-based risks to biopharmaceutical stakeholders, fundamentally, drug end users.

The proliferation of CROs and their plans to gain further operational control of clinical trials pose the potential tradeoff between drug development efficiency and equitable development and access to drugs and research knowledge. This reasonable concern is most present in the efficiency-based scholarship debate on shareholder and stakeholder governance of recent years. The discussion centers on whether new corporate leaders and investors might be paying too much attention to shareholder value while not enough to stakeholder value. A balance, the debate seems to suggest, is critical to generating long-term shareholder wealth, shifting the long-standing “shareholder value” corporate governance model toward an equity-based, “deliver value” type, commitment.

By observing the lay of the land of CROs in the United States and using as a theoretical framework the increasingly influential stakeholderism approach to corporate governance, this essay offers a critical view of the use of stakeholder factors in stewardship decisions made by CROs’ corporate leaders and private equity investors. Ultimately, it aims to identify key areas of organizational and governance concerns in medical research and the shortcomings they represent to equitable access to medical innovation.