Non-Determinism and the Lawlessness of ML Code

Legal literature on machine learning (ML) tends to focus on harms, and as a result tends to reason about individual model outcomes and summary error rates. This focus on model-level outcomes and errors has masked important aspects of ML that are rooted in its inherent non-determinism. We show that the effects of non-determinism, and consequently its implications for the law, instead become clearer from the perspective of reasoning about ML outputs as probability distributions over possible outcomes. This distributional viewpoint accounts for non-determinism by emphasizing the possible outcomes of ML. Importantly, this type of reasoning is not exclusive with current legal reasoning; it complements (and in fact can strengthen) analyses concerning individual, concrete outcomes for specific automated decisions. By clarifying the important role of non-determinism, we demonstrate that ML code falls outside of the cyberlaw frame of treating "code as law," as this frame assumes that code is deterministic. We conclude with a brief discussion of what work ML can do to constrain the potentially harm-inducing effects of non-determinism, and we clarify where the law must do work to bridge the gap between its current individual-outcome focus and the distributional approach that we recommend.