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The paper proposes a framework for judicial review of board decisions that have been augmented by an AI. It starts from the assumption that the law treats decision-making by board members differently than decision-making by officers and employees. Against this background, the paper brings out two core characteristics. Corporate law expects board members, but not directors and employees, to fully own their decision. As a flipside of ownership, corporate law places trust in board members to form business judgments, immune against judicial second-guessing. The paper moves on to investigate how these principles play out when an AI augments board‘s decision-making.

The paper makes two contributions to the debate. First, it rejects the notion that black-box AI may not be used for board decision-making. Second, it proposes a graphic control matrix to identify low, medium, and enhanced judicial scrutiny when boards use an AI to inform their decisions.

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