On #robot judges: part 10.

In part 9,¹ we explored propositions in an article from The Business Times,² in which the author argues for "embrac[ing] legally binding and enforceable #AI-generated reasoned determinations".

This post focuses on how much choice we have as to whether to be bound by robot judges' decisions.

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Proposition 5.

The author suggests that parties have a choice as to how they want their disputes to be decided, and identifies arbitration in particular. The author asks - "[i]f decisions made by arbitral tribunals are enforceable, why shouldn't similar recognition be given to decisions made by robot judges"?

You know, I agree.

But this only works if parties have a real choice as to whether to opt for robot judges - or not. I illustrate with 2 case studies.

1.  The "toeslagenaffaire".³

From 2013 to 2019, Dutch tax authorities utilised a self-learning algorithm to identify families who were suspected of child care benefits fraud...

...and penalise them.

"Tens of thousands of families — often with lower incomes or belonging to ethnic minorities — were pushed into poverty because of exorbitant debts to the tax agency. Some victims committed suicide. More than a thousand children were taken into foster care... people were often wrongly labeled as fraudsters... some did not receive a payment arrangement or you were not eligible for debt restructuring..."

If robot judges are foisted on us, their decisions can lead to consequences which (a) cannot be opted out of; and (b) are difficult to reverse.

2. Click-wrap mandatory arbitration clauses.

Suppose you go onto a restaurant's website and order $2,000 worth of food for a party. You're billed, but the food never arrives. The restaurant ignores your complaint.

Naturally, you want to bring a claim against the restaurant.

But wait! The terms and conditions provide that any dispute with the restaurant is to be determined by arbitration...

...in Timbuktu...

...in the High Valyrian language.

How practical is this?

Now, in order to avoid this, you could theoretically have:

(a) before placing your order, checked the terms and conditions, and noticed this arbitration clause; and
(b) either negotiated with the restaurant to amend this clause,⁴ or chosen to take your business elsewhere.

But what if:

(a) this is the only restaurant in town; or
(b) all restaurants in town utilise a similar arbitration clause?

By now, it should be clear that I'm not really talking about restaurants.

The point I'm trying to make is that in our dealings, while we theoretically have a choice as to our dispute resolution clauses, and whether to submit to robot judges...

...sometimes we don't really have a choice.⁵

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I suggest that it is too simplistic to hand-wave away potential problems with robot judges by saying, "but you can choose whether to use them!"

I'll conclude this series in the next post.