Duha Ali (California State Polytechnic University, San Luis Obispo) has posted The Right to a Fair Algorithm: Human Rights, Consumer Protection, and AI Ethics in Confronting Algorithmic Bias on SSRN. Here is the abstract:
An algorithm that rejects a job application, denies a loan, or informs a sentence makes a determination about a person entitled to dignity and equal protection under the Universal Declaration of Human Rights, a consumer entitled to a meaningful explanation and a path of redress under the UN Guidelines for Consumer Protection, and a subject of the fairness, transparency, and accountability commitments AI ethics frameworks such as UNESCO’s 2021 Recommendation on the Ethics of Artificial Intelligence and the OECD’s AI Principles ask companies to honor. Those instruments are soft law: aspirational, unenforceable against a private company on their own terms. This paper asks how much of what they promise is already enforceable through existing judge-made doctrine, existing statutory private rights of action, and ordinary private-law tools, rather than remaining a values statement a company can adopt without consequence. It matches disparate impact doctrine to the fairness and non-discrimination principle, the Equal Credit Opportunity Act’s and Fair Housing Act’s private rights of action to the consumer’s right to explanation, and State v. Loomis and Mobley v. Workday, including a 2026 ruling narrowing discovery of a vendor’s own bias-testing data, to the still-unrealized promise of transparency and human oversight. It then turns to vendor contracting, emerging tort theory, corporate directors’ Caremark duty, and industry certification as the tools available to close what remains of the gap, before closing with five recommendations addressed to courts, contract drafters, litigators, and corporate boards.
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