A Rule of Persons, Not Machines


Frank Pasquale

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Algorithms are step-by-step instructions for transforming inputs into outputs. For example, an algorithm may process data into a score, ranking, or recommendation. Prominent in computing, algorithms are growing in importance in law. For many legal futurists, attorneys’ work is a prime target for automation, because it is essentially algorithmic: data (the facts) are transformed into outputs (judgments or agreements) via application of set rules. These technophiles promote algorithmic substitutes for contracts, judgments, and descriptions of facts now written by humans.

Legal automation can sometimes resolve disputes more efficiently than attorneys. However, it can also elide or exclude important human values, necessary improvisations, and irreducibly deliberative governance. Due process, appeals, and narratively intelligible explanations from persons, for persons, are essential to a humane legal order. Without these protections, errant or unfair algorithmic decisions may never be challenged, or even detected.

A commitment to personal responsibility for decisions will require attorneys to revive core principles of the rule of law. When the primary threat to legal order was the arbitrary decree of autocrats, judges and advocates resisted with the principle “a rule of law, not of men.” As automation advances, attorneys must now complement this adage with a commitment to “a rule of persons, not machines.” Neither managers nor bureaucrats should be allowed to hide behind algorithmic modes of social ordering. Rather, personal responsibility for decisions is essential to maintaining rule of law principles in the 21st century.

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