Kevin Crow (MIT Asia School of Business) has posted Algorithmic Due Diligence in Critical Resource Value Chains on SSRN. Here is the abstract:
This Article argues that the critical minerals transition is increasingly governed through an “ESG truth-machine”: traceability platforms, certification, vendor risk-scoring, automated audit triage, and, increasingly, generative systems that produce sustainability narratives from partial and asymmetric data. EU and transnational regimes present these techniques as technocratic solutions to supply-chain opacity. International legal scholarship, however, has been slower to treat AI-enabled compliance infrastructures as part of what due diligence is, rather than as implementation detail. The result is a structural mismatch between the normative aims of due diligence (prevention, mitigation, remedy) and the mechanisms firms use to demonstrate compliance (datafication, scoring, and disclosure optimization). Drawing on the growing empirical literature on due diligence implementation and on the EU’s converging due diligence, reporting, batteries, critical raw materials, and AI instruments, the Article advances three doctrinal claims. First, disclosure regimes can manufacture credibility while hollowing out responsibility, enabling algorithmic greenwashing unless law disciplines the methods that produce ESG claims (provenance, assumptions, and contestability), not only their outputs. Second, compliance technologies can themselves generate adverse impacts, so dignity and equality constraints must attach to the tools that perform due diligence. Third, sustainability that ignores fiscal contribution risks legitimacy without redistribution: in extractives, tax practices shape state capacity, and state capacity is a precondition for environmental and labor governance. The Article also addresses the interstate dimension of these regimes, which producer states have contested as instruments of country-level exclusion, and closes with an architectural agenda for “algorithmic due diligence” centered on an ESG evidence chain, rightsrespecting technology governance, and fiscal coherence.
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum