David Horton, ‘Forced Robot Arbitration’

ABSTRACT
Recently, advances in artificial intelligence (AI) have sparked interest in a topic that sounds like science fiction: robot judges. Researchers have harnessed AI to build programs that can predict the outcome of legal disputes. Some countries have even begun allowing AI systems to resolve small claims. These developments are fueling a fascinating debate over whether AI courts will increase access to justice or undermine the rule of law.

However, this Article argues that AI adjudication is more likely to set down roots in one of the most controversial areas of the American civil justice system: forced arbitration. For decades, corporations and arbitration providers have capitalized on the US Supreme Court’s muscular interpretation of the Federal Arbitration Act (FAA) to create their own alternative procedural universes. These entities may soon take the next step and eliminate human decision-makers in some contexts. First, most objections to AI judges do not apply to AI arbitrators. For example, because AI systems suffer from the ‘black box problem’ – they cannot explain the reasoning behind their conclusions – deploying them in the judicial system might violate procedural due process principles. But opacity is already the norm in arbitration, which is private, confidential, and often features awards that are unwritten …

Horton, David, Forced Robot Arbitration (February 18, 2023), Cornell Law Review, volume 109, forthcoming 2023.

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