Reparations of the horse? Algorithmic reparation and overspecialized remedies

Abstract

In his seminal article, “Cyberspace and the Law of the Horse,” Frank Easterbrook criticized the scholarly trend of developing overspecialized legal approaches to emerging technologies. Easterbrook argued that these approaches are confusing, shallow, and superfluous. Algorithmic reparation has emerged as a framework for addressing algorithmic systems’ role in inequity and injustice. One understanding of algorithmic reparation is as a method for repairing algorithmic harms. This article examines how this understanding fares against the “law of the horse” critique by posing two questions. First, is algorithmic reparation overspecialized in its methods? Second, is algorithmic reparation overspecialized in the harm it targets? If its methods are too particularized, then algorithmic reparation will only work within a narrow range of circumstances and may undercut a more robust conception of remedies for algorithmic injustice. If the harm it targets is too particularized, then algorithmic reparation will result in incomplete or misguided redress of harms. We determine that algorithmic reparation is not too specific in its methods by demonstrating how–under algorithmic reparation principles–existing methods for reparations can be applied to address algorithmic harm. We also determine that algorithmic reparation can sometimes be too narrow in the harm it targets, which can reduce its effectiveness. When an algorithmic system is both necessary and sufficient for a harm to occur, algorithmic reparation is an effective method of redress. But when an algorithmic system is not necessary and sufficient for a given harm, algorithmic reparation may be incomplete, only temporarily effective, or miss the mark entirely.