Prediction, Pre-Emption, Presumption: The Path of Law After the Computational Turn
Ian Kerr, "Prediction, pre-emption, presumption: The path of law after the computational turn" in Mireille Hildebrandt, Katja de Vries, eds, Privacy and Due Process After the Computational Turn, (London: Routledge, 2013) 91.
30 Pages Posted: 12 Jun 2019
Date Written: June 3, 2013
This chapter examines the path of law after the computational turn. Using jurist Oliver Wendell Holmes Jr.’s theory of the “bad man”, the author explores the power of predictive technologies and the extent to which they threaten due process. The author questions whether the benefits of such technologies — increased efficiency, reliability, and convenience — are worth the harmful impacts they introduce as they are hastily embraced by corporations, governmental entities, and the public at large. Distinguishing between consequential, preferential, and preemptive predictions, the latter of which assesses the likely consequences of (dis)allowing persons to act in a certain way, the author contends that prediction, when understood in the context of risk as outlined by Holmes and social theorist Ulrich Beck, is easily connected to the idea of preemption. This adoption of the philosophy of preemption carries significant consequences, including detrimental impacts on fundamental commitments to justice and due process. The paper concludes by encouraging future research to explore the notion of preemption as it concerns the computational turn.
Keywords: artificial intelligence, AI, technology law, predictive technology
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