Citation

Automated Governance

Author:
Ajunwa, Ifeoma
Year:
2023

Although one might contend that acquiescing to algorithmic decisions as aconsumer is a personal and private choice, the question remains whether, ascitizens, we should also relinquish control to algorithmic decision-making forstate governance and oversight over laws. Our trepidation over governmentalalgorithmic decision-making relates to our visceral dread of the inflexibility ofmachines—an obduracy that can wreak fatal consequences. However, althoughwe may continue to fear algorithmic overlords, the ship has already sailed on thedebate over automated governance. A path-breaking report chaired byProfessors David Engstrom, Daniel Ho, Catherine Sharkey, and JusticeMariano-Florentino Cuellar provides a comprehensive overview of theautomated decision-making that governmental agencies have already deployedand show that nearly half of the federal agencies studied (forty-five percent)have delved into artificial intelligence (“AI”) and related machine learning(“ML”) tools. First, the Article notes the benefits of automated governance,which include: (1) efficiency, (2) cost-savings, and (3) the capability to uncoverhistorical patterns of bias. Thus, the only true remaining questions are: (1)Whether there are still meaningful differences in human versus algorithmicdecision-making such that some scenarios should preclude the use of the latter;and (2) whether there is a right to explanation and contestation regardingautomated governance? In addition to answering these questions, the Articlealso offers proposals for how the Equal Employment Opportunity Commissionand Federal Trade Commission may make new use of automated tools toprevent racial and other types of discrimination in business decision-making.Finally, the Article details several guardrails that should be put in place toensure that automated governance will serve the greater good.