Distribution Is Not Answerability: Automated Discretion, the Distributive Turn, and the Rule-of-Law Check

The debate on artificial intelligence and the labour market has settled, within a year, on a set of distributive remedies: a basic income, a levy on AI use, and a sovereign fund holding public equity in the AI companies. These instruments recapture the value that automated systems produce and share it more widely. None of them governs the decisions those systems make. This paper argues that the gap they leave open is a gap in the rule of law, and that it has been mislocated. The objection is not that automated systems exercise discretion, which is ordinary and legitimate, nor that their discretion should be abolished, which is neither possible nor desirable. The objection is that automation removes the occasion on which discretionary power has always been checked: the point at which a consequential decision can be reconstructed and challenged before a forum. The distributive remedies do not restore that occasion, and the most ambitious of them, state equity in AI, works against it, because a state that holds a financial stake in the firms it must check acquires an interest in their expansion that its duty to check them then has to overcome. The paper sets the argument within the conception of the rule of law that treats discretion as a thing to be confined and reviewed, and locates the missing occasion within the procedural account of legality.