Allocating Pollution

This Essay argues for the development of more robust—and balanced—law that focuses not only on the risks, but also the potential, that AI brings. In turn, it argues that there is a need to develop a framework for laws and policies that incentivize and, at times, mandate transitions to AI-based automation. Automation rights—the right to demand and the duty to deploy AI-based technology when it outperforms human-based action—should become part of the legal landscape. A rational analysis of the costs and benefits of AI deployment would suggest that certain high-stakes circumstances compel automation because of the high costs and risks of not adopting the best available technologies. Inevitably, the rapid advancements in machine learning will mean that law soon must embrace AI; accelerate deployment; and, under certain circumstances, prohibit human intervention as a matter of fairness, welfare, and justice.

A recurrent problem in adapting law to artificial intelligence (AI) programs is how the law should regulate the use of entities that lack intentions. Many areas of the law, including freedom of speech, copyright, and criminal law, make liability turn on whether the actor who causes harm (or creates a risk of harm) has a certain intention or mens rea. But AI agents—at least the ones we currently have—do not have intentions in the way that humans do. If liability turns on intention, that might immunize the use of AI programs from liability. We think that the best solution is to employ objective standards that are familiar in many different parts of the law. These legal standards either ascribe intention to actors or hold them to objective standards of conduct.

Title VII’s anti-retaliation provision is clear: if an employee complains about employment discrimination, it is illegal for an employer to retaliate against them.