Artificially Intelligent Class Actions

57 Pages Posted: 5 Feb 2021 Last revised: 26 Apr 2022

See all articles by Peter Salib

Peter Salib

University of Houston Law Center

Date Written: December 16, 2020

Abstract

Class actions are supposed to allow plaintiffs to recover for their high-merit, low-dollar claims. But current law leaves many such plaintiffs out in the cold. To be certified, classes seeking damages must show that, at trial, “common” questions (those for which a single answer will help resolve all class members’ claims) will predominate over “individual” ones (those that must be answered separately as to each member). Currently, many putative class actions in important doctrinal areas—mass torts, consumer fraud, employment discrimination, and more—are regarded as uncertifiable for lack of predominance. As a result, even plaintiffs with valid claims in these areas have little or no access to justice. This state of affairs is exacerbated by a line of Supreme Court cases beginning with Wal-Mart Stores, Inc. v. Dukes. There, the Court disapproved of certain statistical methods for answering individual questions and achieving the predominance of common ones.

This Article proposes a first-of-its kind solution: A.I. class actions. Advanced machine learning algorithms could be trained to mimic the decisions of a jury in a particular case. Then, those algorithms would expeditiously resolve the case’s individual questions. As a result, common questions would predominate at trial, facilitating certification for innumerable currently-uncertifiable classes. This Article lays out the A.I. class action proposal in detail. It argues that the proposal is feasible; the necessary elements are precedented in both complex litigation and computer science. The Article also argues that A.I. class actions would survive scrutiny under Wal-Mart, though other statistical methods have not. To demonstrate this, the Article develops a new, comprehensive theory of the higher-order values animating Wal-Mart and its progeny. It shows that these cases are best explained as approving statistical proof only if it can deliver accurate answers at the level of individual plaintiffs. Machine learning can deliver such accuracy in spades.

Suggested Citation

Salib, Peter, Artificially Intelligent Class Actions (December 16, 2020). Texas Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3750222 or http://dx.doi.org/10.2139/ssrn.3750222

Peter Salib (Contact Author)

University of Houston Law Center ( email )

4104 Martin Luther King Blvd.
Houston, TX 77204
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
163
Abstract Views
846
rank
252,435
PlumX Metrics