Abstract
In stark contrast to the recently revoked federal policy meant to incentivize the adoption of safe, secure, and trustworthy artificial intelligence systems, the July 2025 Winning the Race, America’s AI Action
Plan succinctly summarizes its approach as “Build, Baby, Build!” Public discourse, as well, vacillates between artificial intelligence (AI) as a savior or an existential threat to society. To make effective decisions about AI governance, policymakers and regulators must not fail to recognize AI systems’ inherent weaknesses. Furthermore, whether citizens have recourse from harmful AI applications will also turn upon judicial balancing of competing interests between technological advancement and
the navigation of complicated and interrelated social policy goals. This Article pursues a reasonable balance, arguing that generative AI systems applied to critical areas of life should not be insulated from review by self-designed opacity and civil procedure impediments. It proposes the judicial
adoption of a rebuttable presumption of AI malfunction, that certain forms of AI are biased and opaque, thereby placing the duty to explain AI decision-making on those who are most able to provide that information. At the same time, the presumption balances policy concerns about preserving the benefits of AI by providing a rebuttable right to developers or vendors. The proposed rebuttable presumption of AI malfunction builds.
