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date: 25 June 2022

Abstract and Keywords

This chapter examines the concept of “fair notice,” both in the abstract and as it operates in U.S. constitutional doctrine. Fair notice is paramount to the rule of law. The maxim has ancient roots: people ought to know, in advance, what the law demands of them. As such, fair notice will be among the key concepts for regulating the scope and role of artificial intelligence (AI) in the legal system. AI—like its junior sibling, machine learning—unleashes a historically novel possibility: decision-making tools that are at once powerfully accurate and inscrutable to their human stewards and subjects. To determine when the use of AI-based (or AI-assisted) decision-making tools are consistent with the requirements of fair notice, a sharper account of the principle’s contours is needed. The chapter then develops a tripartite model of fair notice, inspired by the problems and opportunities of AI. It argues that lack of fair notice is used interchangeably to describe three distinct properties: notice of inputs, notice of outputs, and notice of input-output functionality. Disentangling these forms of notice, and deciding which matter in which contexts, will be crucial to the proper governance of AI.

Keywords: fair notice, U.S. constitutional doctrine, rule of law, artificial intelligence, legal system, AI-based decision-making tools, AI governance, notice of inputs, notice of outputs, input-output functionality

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