OpenAI, an artificial intelligence (“AI”) developer, captured the attention of technology companies, consumers, and policymakers when it released an updated version of its AI-enabled chatbot ChatGPT in December 2022. Weeks after the release, a Member of Congress introduced a non-binding resolution calling for a nimble and flexible government agency to oversee AI development to manage risks and ensure that benefits of AI are widely distributed.
AI raises many governance challenges that are common with emerging technologies. For example, AI is evolving rapidly and few policymakers understand the technology and its potential impacts. Strengthening regulation during the technology’s development may limit potential benefits, yet delaying government action may result in significant, and potentially irreversible, social and economic impacts.
This Article examines the conflicts between the type of flexible statutory authority required to govern an emerging technology like AI and the Major Questions Doctrine (“MQD”)-a poorly defined and potentially boundless tool for a skeptical court to overturn agency actions. This Article begins with a summary of the challenges with emerging technology governance. Next, the Article describes the evolution of the MQD and explains how the doctrine frustrates efforts to govern emerging technologies. The Article concludes with reflections about emerging technology governance following the Supreme Court’s decision in West Virginia v. EPA.
Author: Jonas Monast
Volume 24, Issue 4