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The Supreme Court's major questions doctrine and AI regulation

  • The Supreme Court's "major questions doctrine" could obstruct efforts by Congress or agencies like the FTC to regulate AI. The doctrine says agencies need explicit authorization for rules with major economic impact.

  • The doctrine's vague, flexible standards make it hard to predict whether AI regulations would survive legal challenges. This uncertainty could chill investments in responsible AI platforms.

  • Possible responses include tightening legislative language, hoping the doctrine won't apply to bipartisan AI rules, and using government procurement power to shape the AI market.

  • The best solution is for the Court to limit the doctrine so Congress can empower expert agencies to balance public and private interests in emerging technologies.

  • Without action, the Court risks distorting AI development to serve only private goals, instead of the public good. Its intervention would be as frightening as on climate change.

brookings.edu
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