Walter G. Johnson (Arizona State University (ASU), Sandra Day O'Connor College of Law, Students; RegNet, Australian National University) & Lucille Tournas (Arizona State University, School of Life Sciences) have posted The Major Questions Doctrine and the Threat to Regulating Emerging Technologies (Forthcoming, 39 Santa Clara High Technology Law Journal) on SSRN. Here is the abstract:
Emerging technologies offer the potential to improve health and quality of life but also pose notable risks to safety, wellbeing, and equity. Law and technology scholarship posits that robust policy and regulatory strategies are required to manage these complex benefits, risks, and uncertainties in the public interest. At the same time, the Supreme Court in its recent jurisprudence appears eager to revitalize nondelegation legal norms, especially through the major questions doctrine. This article argues the major questions doctrine and other aggressive implementations of nondelegation principles pose both direct and indirect challenges to the regulation of emerging technologies—which often involves not only novel rulemaking but also “inherited regulation,” or the process of extending existing rules to capture emerging technologies. Especially with a politically incapacitated Congress, the major questions doctrine could pose significant legal challenges (or uncertainty) and create new policy and political issues in administrative agency efforts to manage emerging technologies. Time and empirical study will be needed to determine exactly how and where aggressive nondelegation canons, such as the major questions doctrine, impact the regulation of emerging technologies. Accordingly, the article concludes by reflecting on coming challenges and opportunities for which regulators and stakeholders should be prepared.
