Kiel Brennan-Marquez, The (Non)Automatability Of Equity
We are in the midst of ongoing debate about whether, in principle, the enforcement of legal rules—and corresponding decisional processes—can be automated. Often neglected in this conversation is the role of equity, which has historically worked as a particularized constraint on legal decision-making. Certain kinds of equitable adjustments may be susceptible to automation—or at least, just as susceptible as legal rules themselves. But other kinds of equitable adjustments will not be, no matter how powerful machines become, because they require non-formalizable modes of judgment. This should give us pause about all efforts toward legal automation, because it is not clear—or even conceptually determinate—which kinds of legal decisions will end up, in practice, implicating non-automatable forms of equity. Kiel Brennan-Marquez University of Connecticut Associate Professor of Law Faculty Director of the Center on Community Safety, Policing and Inequality