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The vetting of potential law clerks using AI algorithms raises profound questions about fairness in the legal system. Law clerks play a crucial role in researching issues and drafting opinions, so their selection is key to ensuring justice. Yet algorithms designed to screen applicants may inadvertently promote unfairness by reflecting the biases of their creators.
Several scholars have highlighted how algorithmic vetting of law clerks jeopardizes fairness. According to professor Danielle Citron, author of Technological Due Process, automating the hiring process could "bake in bias" and reinforce historical inequities if the algorithms are not carefully audited. Algorithms trained on past hiring data, which often favored white males from elite law schools, may automatically filter out qualified applicants who don't fit the historical mold.
Citron argues this would undermine the hard-won diversity of the clerk pool in recent decades. Law professor Deborah Rhode has similarly cautioned that algorithms may incorporate the implicit biases of their programmers, from gender stereotyping to racial profiling. Relying on AI to assess applicants could exclude unconventional yet highly qualified candidates in ways that are difficult to detect and remedy.
The Institute for the Future of the Legal Profession warns that AI filtering of clerkship applicants may displace human judgment important to evaluating character and promise. Subtle aspects of fairness, ethics and wisdom cannot be reduced to data points in an algorithm. Constitutional law scholar Erwin Chemerinsky argues clerks should be selected to ensure viewpoint diversity, not just demographic diversity. But AI algorithms may not account for diversity of perspectives, limiting the discourse inside judges' chambers.
A recent controversy erupted when a federal judge announced plans to use an AI system to vet potential law clerk applicants. The backlash highlights growing concerns about fairness and bias in algorithmic decision-making.
Legal experts sharply criticized the judge's proposal to employ a "robo-lawyer" to assess clerkship candidates. Danielle Citron called it an "awful idea" that could bake unfairness into the hiring process if the algorithms reflect historical biases. Deborah Rhode argued that supposedly neutral AI systems often just "replicate the preferences of the programmers." Erwin Chemerinsky warned it threatens viewpoint diversity among clerks.
Former clerks also objected that an AI filter would miss out on promising candidates. The role demands subtle interpersonal skills, intellectual curiosity, and ethical judgment that algorithms cannot measure. Applicants often grow from unconventional backgrounds into outstanding clerks. An AI filter might have rejected Sonia Sotomayor as a clerkship candidate straight out of Yale Law, but mentors saw her potential.
Some argued a robo-lawyer clerkship screener compromises constitutional principles. As David Lat commented, "You have to wonder about having an algorithm make decisions that are supposed to be made by humans." Outsourcing evaluation of applicants to a black-box system conflicts with ideals of meaningful due process and human dignity.
Others pointed to real-world examples of bias in automated hiring tools. Amazon's AI recruiting engine exhibited bias against women by penalizing resumes containing the word "women." Amounts of explicit bias are hard to predict in algorithms trained on human decisions. Structural discrimination easily creeps into AI systems claiming pure objectivity.
The rise of automated decision-making through AI and algorithms raises profound dangers that warrant serious concern. When human discretion and judgment is delegated entirely to machines, the risk of unfair or arbitrary outcomes increases substantially. Algorithmic systems designed without careful safeguards can easily reproduce underlying biases, discriminate against disadvantaged groups, and make consequential mistakes that deeply impact people"s lives.
The dangers of unfair automated decisions have already materialized in many real-world contexts. In healthcare, an algorithm widely used by hospitals to allocate care resources was found to disproportionately direct Black patients away from specialized programs. In criminal justice, risk assessment algorithms that determine bail and sentencing recommendations have scored defendants from marginalized neighborhoods as higher risk, perpetuating cruel cycles of poverty and incarceration.
Employment screening algorithms have filtered out qualified female candidates or downgraded applicants who attended women's colleges, reflecting the implicit biases of programmers. Automated content moderation frequently censors the speech of minorities and activists challenging power, while allowing hate speech to thrive. High stakes decisions cannot be left to AI systems without inviting discrimination.
Inherent opacity compounds the dangers of automated decision systems. Proprietary corporate algorithms used in lending, housing, employment, and more remain deliberately obscured from public scrutiny. Their inner workings are protected as trade secrets. This lack of transparency prevents accountability and makes bias incredibly difficult to detect or challenge. Users suffer the consequences of algorithmic discrimination as an inscrutable black box hands down verdicts.
Automated decisions forbid the nuance, discretion, and empathy of human judgment. Strict algorithmic logic struggles to account for special circumstances, complex social contexts, or the dignity of individual persons. Reducing applicants, defendants, borrowers and more to statistical aggregates or data points denies their humanity. Yet algorithmic verdicts carry an air of scientific objectivity and fact, when they in truth reflect embedded values and choices.
Algorithmic bias poses a severe threat to ideals of justice, due process, and equal treatment under the law. When biased data and discriminatory design choices become embedded in complex AI systems, the resulting decisions and outcomes systematically disadvantage marginalized groups without explanation or recourse. The unchecked proliferation of algorithmic bias across critical domains like criminal justice, employment, healthcare, and finance thus demands urgent attention and intervention at a societal level.
Studies reveal how bias and discrimination permeate algorithmic systems that impact people's lives. In healthcare, an algorithm used by major hospitals to guide health resource allocation was found to direct Black patients away from special programs at nearly twice the rate of white patients, even when controlling for health factors. The automated system likely amplified small differences in past treatment data in a discriminatory feedback loop. Risk assessment algorithms for bail and sentencing decisions have also exhibited significant racial biases, falsely labeling Black defendants as higher risk and perpetuating cruel cycles of poverty and incarceration.
Employment algorithms have filtered out qualified female candidates, Scanwell reports, and systemically assigned female applicants lower scores. Amazon's experimental AI recruiting tool infamously downgraded resumes containing the word "women", reflecting the unconscious biases of its creators. Content moderation algorithms likewise tend to censor marginalized voices and activism challenging existing power structures, while enabling hatred, misinformation, and extremism to spread unchecked.
In all cases, the root causes lie in biased training data, limited sample sizes, human programmers' cognitive biases, and lack of diverse perspectives. Yet the average user has no ability to audit these algorithmic black boxes protected by corporate secrecy. Opacity and lack of accountability thus exacerbate the dangers posed by algorithmic bias. The presumed neutrality and objectivity of automated decisions also lead people to tolerate discriminatory outcomes they would reject from a human decision-maker.