Document Type
Article
Publication
Vanderbilt Law Review
Year
2023
Citation Information
Rebecca Crootof, Margot E. Kaminski, and W. Nicholson Price II, Humans in the Loop, 76 Vand. L. Rev. 429 (2023), available at https://scholar.law.colorado.edu/faculty-articles/1594.
Abstract
From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these "human-in-the-loop" systems. We make four contributions to the discourse.
First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify "the MABA-MABA trap," which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into a decision-making process. Regardless of whether the law governing these systems is old or new, inadvertent or intentional, it rarely accounts for the fact that human-machine systems are more than the sum of their parts: they raise their own problems and require their own distinct regulatory interventions.
But how to regulate for success? Our third contribution is to highlight the panoply of roles humans might be expected to play, to assist regulators in understanding and choosing among the options. For our fourth contribution, we draw on legal case studies and synthesize lessons from human factors engineering to suggest regulatory alternatives to the MABA-MABA approach. Namely, rather than carelessly placing a human in the loop, policymakers should regulate the human-in-the-loop system.
Copyright Statement
Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required.