How does the First Amendment apply to AI regulation in hiring and health care?
The most important decisions about our lives can turn on factors ranging from unfair to downright absurd. In medieval England, a criminal facing the gallows could save their neck by reciting Psalm 51 from memory — a literacy test meant to identify clergy that became a famous loophole for accused commoners. In France, employers have long sorted job candidates by handwriting analysis, a method researchers later found predicts job performance no better than chance. In Israel, a famous study of parole boards found that favorable rulings peaked right after the judges had lunch and gradually slid toward the bottom as dinner approached. This became known as the “hungry judge effect.”Subscribe
Society has historically tackled such problems by firing bad decision-makers, passing generally applicable laws governing business practices, or — in the case of England’s “neck verse” — simply repealing the rule. Other times, we might just accept that any qualitative decision carries some inherent arbitrariness — what legal scholar Cass Sunstein and Princeton psychologist Daniel Kahneman called “noise“ in human judgment. Attempting to ensure good decisions by regulating the tools a decision-maker consults — as opposed to the acts and outcomes themselves — is a relatively recent societal initiative. And today, it’s coinciding with algorithms and AI bringing the same unfairness and absurdity to decision-making in digital form.
Instead of memorizing Psalm 51 or perfecting a handwriting sample, people try to game algorithms. As testing of AI video-interview screening tools offered by a Munich startup revealed, a job candidate’s score would rise when she added a bookshelf to her background and fall when the lighting dimmed. A Guardian investigation similarly found resume-screening tools quietly treating a first name like “Thomas” or a keyword like “church” as a predictor of success on the job.
