The Right to be an Exception to a Data-Driven Rule

Abstract

Data-driven tools are increasingly used to make consequential decisions. They have begun to advise employers on which job applicants to interview, judges on which defendants to grant bail, lenders on which homeowners to give loans, and more. In such settings, different data-driven rules result in different decisions. The problem is: to every data-driven rule, there are exceptions. While a data-driven rule may be appropriate for some, it may not be appropriate for all. As data-driven decisions become more common, there are cases in which it becomes necessary to protect the individuals who, through no fault of their own, are the data-driven exceptions. At the same time, it is impossible to scrutinize every one of the increasing number of data-driven decisions, begging the question: When and how should data-driven exceptions be protected? In this piece, we argue that individuals have the right to be an exception to a data-driven rule. That is, the presumption should not be that a data-driven rule--even one with high accuracy--is suitable for an arbitrary decision-subject of interest. Rather, a decision-maker should apply the rule only if they have exercised due care and due diligence (relative to the risk of harm) in excluding the possibility that the decision-subject is an exception to the data-driven rule. In some cases, the risk of harm may be so low that only cursory consideration is required. Although applying due care and due diligence is meaningful in human-driven decision contexts, it is unclear what it means for a data-driven rule to do so. We propose that determining whether a data-driven rule is suitable for a given decision-subject requires the consideration of three factors: individualization, uncertainty, and harm. We unpack this right in detail, providing a framework for assessing data-driven rules and describing what it would mean to invoke the right in practice.Comment: 22 pages, 0 figure