The Thought Problem and Judicial Review of Administrative Algorithms

Abstract

The issue of whether algorithms can be characterised as “thinking” or have properties of “thought” has arisen in both judicial decisions like Pintarich and scholarly discussion regarding issues like bias. This paper refers to this issue as the Thought Problem and introduces three principles for how to resolve it: the manifestation, implementation, and equivalent treatment principle. The manifestation principle states that an algorithmic output can be considered a decision where the manifestation of conduct of the agency supervising the algorithm would be understood to the outside world as a product of a thinking person. The implementation principle states that the humans in the executive who implemented the algorithm have responsibility for the algorithm. The equivalent treatment principle proposes to treat algorithms and a humans who reasoned similarly as equivalent before the eyes of administrative law. The paper does not try to conclusively resolve which principle is best but suggests the equivalent treatment principle is the most complete one for dealing with the Thought Problem.

Keywords: Automated Decision Making, Artificial Intelligence and Law, Administrative Law, Law and Technology

JEL Classification: K00, K10, K23