The chapter examines the legal challenges of rationality of automated decision-making through constitutional due process in the US, and via judicial review in the UK and Australia. The existing legal frameworks of these jurisdictions are premised on human decision-making and the concept of human rationality. Automated decisions that fail the test of rationality can be invalidated. Following this, the chapter will consider three main issues in terms of reviewability of the rationality of a decision: what is seen as constituting a “decision”, who is the decision-maker, and what factors and criteria can be used in making a decision.

Chapter 5 evaluates the fairness of DCL-influenced proceedings under two theories: violation of procedural due process and breach of contract for failure to comport with basic procedural fairness. The first, which is grounded in the U.S. Constitution, provides a stronger basis for recovery. However, it requires state action, which means it is probably only available to public school students. The chapter argues that under either theory, the procedural protections provided are inadequate.

In order to solve a constitutional problem, the constitutional lawyer will always use the basic toolkit of arguments discussed in Chapter 3, and as we saw in Chapter 4, the lawyer must also consider the ways in which institutional perspective affects how questions are shaped and answers constructed. There are, furthermore, specific clauses in the written Constitution that merit special attention.