Public Institutions Can’t Outsource Their Reasoning

For the Balkinization Symposium on the Global Political Economy of Artificial Intelligence. Ignacio Cofone [This essay distills part of the argument in Ignacio Cofone, Institutional Accountability and Legitimate Inference in Algorithmic Adjudication: Beyond Trustworthy AI, forthcoming in Cambridge Forum on AI Law and Governance (2026).] AI does not relieve courts and administrative agencies of the duty to defend the reasoning behind their decisions but, on occasion, it does make that duty harder to satisfy. For most of the 2010s, the Dutch tax authority used a self-learning algorithm to flag potential fraud in claims for childcare benefits, a means-tested subsidy that helps parents cover daycare costs. The system assigned higher risk scores to families with certain characteristics, including dual nationality. When civil servants reviewed flagged claims, they were given no information about why the system had assigned the score. More than 26,000 families were wrongly accused, many of…