Ethics, AI, Colonialism, and the Nondelegation Doctrine
Introduction
Before Elizabeth Holmes and Sam Bankman-Fried received jail time for fraud, they were considered golden exemplars of young and brilliant entrepreneurs. But Theranos and FTX turned out to be just two glaring examples of a much larger and growing problem—false or misleading research published by scientific journals. According to Retraction Watch, 120 articles were retracted in 2002. Twenty years later, in 2022, that number was 5,400. And Nature reported last December that more than 10,000 papers were retracted in 2023.
In her essay, “Ethics of Innovation: A Framework for Responsible Innovation Governance,” Professor Nicole Morris offers a two-pronged approach to address what she calls “an ethical void in innovation.” First, we need stricter oversight by federal agencies, with penalties for noncompliance. But the legal profession also needs to take a more active role to shape ethical frameworks, she says.
Morris’ pre-academia experience includes her role as managing patent counsel at The Coca-Cola Company and engineering at 3M and Eli Lilly. She leads Emory Law’s TI:GER Program (Technological Innovation: Generating Economic Results), where students learn to transform highly promising research or early-stage technology into economically viable products. In 2022, she was named Emory Law’s inaugural director of the Innovation and Legal Tech Initiative.
A global perspective on AI
“Thus far, the legal response to generative AI has been partial, piecemeal, and panicked,” S. I. Strong wrote earlier this year in her article, “Regulating Generative Artificial Intelligence in Domestic and International Arbitration: A Content-Neutral Blueprint for Action” (forthcoming in the American Review of International Arbitration).
Rather than proposing a solution to issues raised by generative AI in those arenas, she aims to identify who can and should act now, moving forward, and in the long term. Her article analyzes “the narrow, preliminary issue of which type of legal authority should be used to respond to the challenges of generative AI in domestic and international arbitration.” By doing so, the article “provides the arbitral community with a content-neutral blueprint for immediate action.”
Colonialism’s long economic shadow
“Corporate Law as Decolonization,” UCLA Law Review (2024) “is the first [article] in legal scholarship to make the connection between corporate governance laws and the decolonization experience of certain colonies,” Martin Sybblis writes.
While casting off imperialism is viewed as the first step to establish independence, Sybblis’ article highlights the role of economic strength as more important than constitutional authority, to achieve a nation’s self-determination. “While political power, such as the political authority made possible through sovereignty, is a significant milestone in any community’s development, it alone is an insufficient vehicle to self-determination,” he writes.
“The choice of nonsovereignty by some jurisdictions, such as the corporate law ‘market dominant small jurisdictions’ of Bermuda, the British Virgin Islands, and the Cayman Islands should not automatically be interpreted as a failure to achieve the fruits of decolonization,” he writes. “On the contrary, their choice of sub-sovereign status to the United Kingdom has led to greater autonomy and self-determination than achieved by neighboring sovereign states in the Caribbean.”
Sloppiness and the nondelegation doctrine
Alexander Volokh, former clerk for Supreme Court Justices Sandra Day O’Connor and Samuel Alito Jr., wrote “The Myth of the Federal Private Nondelegation Doctrine,” for the Notre Dame Law Review last year. His opening statement: “It’s almost blackletter law that delegations of governmental power to private parties are unconstitutional.”
But, he explains: “There’s just one problem with this consensus: it’s mostly wrong. First, there is a sloppiness, in that judges and scholars alike often use the term ‘nondelegation doctrine’ indiscriminately to refer to several disparate doctrines; we would do well to disentangle the doctrines and be clear on each one’s domain. Second—and more fundamentally—once we disentangle the doctrines, we find that none of them rules out private delegations as such.”
He sorts nondelegation doctrines into three classes: “giver-based” (can Congress delegate this power?), “recipient-based” (can the recipient exercise this power?), or “application-based” (will the application of this power be unjust?).
“Once we distinguish these doctrines, it becomes apparent that none of them rules out private delegations,” Volokh writes. “On the contrary, some doctrines actually facilitate privatization, because they provide that certain private delegations are exempt from certain constitutional requirements. As for the other doctrines, they do not embody any categorical antiprivate rule.”
We hope you enjoy reading this survey of recent Emory Law scholarship. To see more from our professors who ranked among the top 20 for scholarly impact, please visit our faculty scholarship page.