David Freeman Engstrom
92 Geo. Wash. L. Rev. 1437
Government use of artificial intelligence (“AI”) to make, implement, and enforce law is fueling anxieties among a growing cast of critics. Some are accelerations of concerns raised by other technology adoptions: error, bias, gaming, and the oversight challenges that come with reliance on procurement. Others are more AI-specific: the power of machine learning and big data to draw privacy-violating inferences, or AI’s “black box” opacity and inability to engage in democratic reason-giving. The reforms AI’s critics demand in response range from the sharp and specific (e.g., outright prohibitions and full-blown, Food and Drug Administration-like licensure) to the gauzy and unproven (e.g., calls to “democratize AI” via participatory design or impact assessments).
This Essay sketches an alternative, “realist” view in three parts. First, policymakers are unlikely to enact the bespoke new regulation of the sort critics are demanding because of AI’s twin capacity to cause and cure error, bias, and inequity. For every horror story there will be a success story—a way new tech makes government’s work more efficient, accurate, rule-of-law-respecting, and equitable. Second, public law has always been radically limited in reach relative to critics’ demands. Indeed, even progressive commentators have long warned that the problem with government may not be too little transparency, but too much, and new procedural burdens, however well-meaning, can stultify a government that already lacks vigor. A final insight follows: the urgent task ahead may be both more pedestrian and more ambitious than AI’s critics suggest. Indeed, if algorithmic accountability will be litigated rather than legislated, then efforts should focus more than they have on legal adaptation—that is, the tailoring of existing legal frameworks, particularly ordinary administrative law, to the government’s new algorithmic toolkit. Wise adaptation, not the blue-sky regulatory overhauls that occupy much of the scholarly literature, should be the order of the day. This Essay makes a start down that road.
