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Judicial Review of Commissioner HAL 9000

Cite as: 7 Geo. L. Tech. Rev. 179 (2023)

The federal government is expanding its use of artificial intelligence (AI) to perform key human tasks. But the Administrative Procedure Act (APA), enacted in 1946, is ill-equipped to handle the use of AI by administrative agencies.1 Given its dynamic nature, approval of AI software in the rulemaking process is unlikely.2 At the same time, the AI black box problem means that courts are unable to evaluate the “reasoned decisionmaking” of an AI adjudicator in the same way that they currently review determinations by Administrative Law Judges (ALJ).3 Despite these challenges, the federal government continues to encourage the implementation of AI technologies by administrative agencies. This places the federal judiciary on an AI collision course.

Sooner or later, a federal court will find itself in the difficult position of evaluating an agency decision heavily reliant upon—or made entirely by— AI software.4 In the absence of Congressional overhaul of the APA, that court will face the arduous task of crafting a new judicial standard appropriate for reviewing AI determinations that still fits within the confines of the APA and a century of case law. This Paper aims to develop a judicial standard for courts to apply when reviewing factual determinations made by agency AI during formal adjudication.

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Eric Leis

J.D., Notre Dame Law School ’22. I thank the Honorable Kenneth Ripple for his helpful comments with this article, John Alsterda at Stanford for introducing me to AI, and the many Notre Dame law professors who indulged my interest in AI and the law including Bruce Huber, Jeff Pojanowski, and Nicole Garnett.