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Cited by 63Digitalization, Law, and RegulationEthics and Social Impacts of AIExplainable Artificial Intelligence (XAI)

Through a Glass, Darkly: Artificial Intelligence and the Problem of Opacity

Open access
Chesterman, Simon·2021·The American Journal of Comparative Law
DOI 10.1093/ajcl/avab012
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Abstract

As computer programs become more complex, the ability of non-specialists to understand how a given output has been reached diminishes. Opaqueness may also be built into programs to protect proprietary interests. Both types of systems are capable of being explained, either through recourse to experts or an order to produce information. Another class of system may be naturally opaque, however, using deep learning methods that are impossible to explain in a manner that humans can comprehend. An emerging literature describes these phenomena or specific problems to which they give rise, notably the potential for bias against specific groups. Drawing on examples from the United States, the European Union, and China, this Article develops a novel typology of three discrete regulatory challenges posed by opacity. First, it may encourage—or fail to discourage—inferior decisions by removing the potential for oversight and accountability. Second, it may allow impermissible decisions, notably those that explicitly or implicitly rely on protected categories such as gender or race in making a determination. Third, it may render illegitimate decisions in which the process by which an answer is reached is as important as the answer itself. The means of addressing some or all of these concerns is routinely said to be through transparency. Yet, while proprietary opacity can be dealt with by court order and complex opacity through recourse to experts, naturally opaque systems may require novel…

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Authors
Chesterman, S.
Affiliations
National University of Singapore (SG)
Corresponding author
Chesterman, Simon
ORCID
Chesterman, Simon
Venue
The American Journal of Comparative Law
Publisher
Oxford University Press (OUP)
Published
2021-04-28
Volume
69
Issue
2
Pages
271-294
ISSN
  • 0002-919X (ISSN-L)
  • 2326-9197
DOI
10.1093/ajcl/avab012
OpenAlex
W3157512024
Cited by
63
References
13
Citations by year
2026: 23 · 2025: 16 · 2024: 15 · 2023: 3 · 2022: 4 · 2020: 2
FWCI
35.86
Type
journal article
Language
en
Open access
Licence
academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model (vor)
Locations
  • The American Journal of Comparative Law (publishedVersion)
  • SSRN Electronic Journal (acceptedVersion)
Topics
  • Social Sciences › Law › Digitalization, Law, and Regulation
  • Social Sciences › Safety Research › Ethics and Social Impacts of AI
  • Physical Sciences › Computer Science › Artificial Intelligence › Explainable Artificial Intelligence (XAI)
Keywords
artificial intelligence, algorithmic opacity, algorithmic transparency, algorithmic accountability, algorithmic bias, algorithmic discrimination, algorithmic decision-making, regulatory challenges, explainable AI, deep learning, algorithmic regulation

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