Susan C. Morse, University of Texas at Austin School of Law, has made available for download her article, “When Robots Make Legal Mistakes,” published in the Oklahoma Law Review. The Abstract is as follows:
The questions presented by robots’ legal mistakes are familiar to legal scholarship because they are examples of the legal process inquiry described by Hart and Sacks. This inquiry asks when the law will accept decisions as final, even if they are mistaken. Legal decision-making robots include market robots and government robots. In either category, they can make mistakes of undercompliance or overcompliance.Morse, Susan C., When Robots Make Legal Mistakes (February 22, 2019). Oklahoma Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3340103
Some robot mistakes are more reviewable than others. The least reviewable kind of mistake is a market robot’s overcompliance mistake. A government robot’s undercompliance mistake is also relatively unlikely to be challenged. On the other hand, a market robot’s undercompliance mistake is open to a government enforcement challenge, and a government robot’s overcompliance mistake is open to a challenge from an aggrieved regulated party.
If robot systems are not explainable, or if courts do not recognize their way of explaining as legitimate under the law, then robots will be less able to defend their actions. For instance, robots will be less able to show that their actions are reasonable, nonnegligent, or consistent with due process requirements. If robots cannot defend their legal decisions due to a lack of explainability, they may respond by making decisions that will avoid the prospect of challenge. This incentive could produce counterintuitive results. For instance, it could encourage market robots to overcomply and government robots to undercomply with the law.