Democracy and Distrust in an Era of Artificial Intelligence

Abstract

This essay examines how judicial review should adapt to address challenges posed by artificial intelligence decision-making, particularly regarding minority rights and interests. As I argue in this essay, the rise of three trends-privatization, prediction, and automation in AI-have combined to pose similar risks to minorities. Here, I outline what a theory of judicial review would look like in an era of artificial intelligence, analyzing both the limitations and the possibilities of judicial review of AI. I draw on cases in which AI decision-making has been challenged in courts, to show how concepts of due process and equal protection can be recuperated in a modern AI era, and even integrated into AI, to provide for better oversight and accountability, offering a framework for judicial review in the AI era that protects minorities from algorithmic discrimination.