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‘A Right to a Better Decision’

June 27, 2024

Prof. Cary Coglianese seated at a table testifying at the Coast Guard NAS Hearing
Prof. Cary Coglianese testifying at the Coast Guard NAS Hearing

Prof. Cary Coglianese writes that “public preferences for human decisions may give way in time to calls for governmental decisions made by artificial intelligence.”

At The Regulatory Review, Cary Coglianese, Edward B. Shils Professor of Law and Political Science, reflects on and responds to an article, “A Right to a Human Decision,” written by law professor Aziz Huq. Coglianese agrees with Huq’s position that we should insist upon better governmental decisions overall, whether made by humans or by machines.

Drawing on his own extensive scholarship on artificial intelligence regulation, Coglianese explores the current landscape of governmental use of AI and the ongoing challenge of ensuring that “these tools have been thoughtfully designed, adequately tested and validated, and repeatedly subjected to audits to ensure that any problems that arise can be addressed early.”

Building on a theme developed in some of his earlier work, such as his article “Algorithm vs. Algorithm,” Coglianese concludes that eventually society may reach the point where citizens come to prefer machine decisions over human ones.

From The Regulatory Review:

In power centers around the world, policymakers, judges, and lawyers are grappling with the question of what role humans versus machines should play in making governmental decisions. This moment of collective reflection makes as timely as ever an important law review article written by legal scholar Aziz Huq entitled, A Right to a Human Decision. Huq analyzes possible normative justifications for such a right and finds each wanting. He suggests that, instead of insisting on a right to a human decision, we should insist on a right to better decisions—whether by humans or by machines.

Over the last year, calls for a right to human decisions have grown strikingly palpable, as ChatGPT and other large language models have demonstrated remarkable proficiency at tasks long performed only by humans. Lawyers have especially taken note because the version of ChatGPT released in March 2023 passed the uniform bar exam all on its own—and at the 90th percentile.

It was thus hardly surprising that the Chief Justice of the U.S. Supreme Court devoted a key portion of his year-end 2023 report on the federal judiciary to how artificial intelligence (AI) is poised to change the work of courts dramatically. He went out of his way to predict that, even in a world of advancing AI technology, there will continue to be a role for human judges. In doing so, he came close to claiming that people possess a right to a human decision.

Even more clearly did the White House so claim in 2022, in a 73-page document entitled a “Blueprint for an AI Bill of Rights.” This Blueprint declared, among other things, that individuals “should be able to opt out from automated systems in favor of a human alternative”—at least “where appropriate.”

Coglianese, Director of the Penn Program on Regulation (PPR), is a globally renowned expert on regulatory law, analysis, and management who has produced extensive action-oriented research and scholarship. He has consulted with regulatory organizations around the world and is a founding editor of the peer-reviewed journal Regulation & Governance.

Launched in 2009 and operating under the guidance of Coglianese, The Regulatory Review is a daily online publication that provides accessible coverage of regulatory policymaking and enforcement issues across a full range of regulatory topics and from a variety of perspectives. Edited by students at the University of Pennsylvania Carey Law School, The Review is part of the overarching teaching, research, and outreach mission of the PPR, which draws together more than 60 faculty from across the University of Pennsylvania.

Read Coglianese’s full piece at The Regulatory Review.

Read more of Coglianese’s scholarship on the regulation of artificial intelligence.