Marc Canellas (Maryland Office of The Public Defender) has posted Antidiscrimination Law’s Cybernetic Black Hole on SSRN. Here is the abstract:
Every system is perfectly designed to get the results it gets. Our American systems addressing employment, housing, family regulation, welfare, and others overwhelmingly generate discriminatory outcomes. Into these existing discriminatory institutions, we have increasingly incorporated machines, creating discriminatory cybernetic systems composed of humans, machines, and organizations. This Article reveals how these cybernetic systems have created black holes in antidiscrimination law, discriminatory outcomes exist but the legal doctrine cannot see them, and thus, cannot remedy them. The fundamental assumptions disparate treatment and disparate impact—identifiable decision makers, discrete decisions, defined practices—cannot comprehend the interdependent and complex nature of cybernetic systems. Plaintiffs, therefore, struggle to identify the required responsible actor or a specific discriminatory practice even when discrimination is evident. Neither tweaks to antidiscrimination law nor pinches of technological magic will help us escape this black hole. The way forward is to redefine intentional discrimination and embrace strict liability, forcing society to do what it seems to fear most: explicitly determine what disparities we are willing to tolerate—an antisubordination lens.
Lawrence Solum