Price, Sachs & Eisenberg on New Innovation Models in Medical AI

W. Nicholson Price II (University of Michigan Law School), Rachel Sachs (Washington University in Saint Louis – School of Law), and Rebecca S. Eisenberg (University of Michigan Law School) have posted “New Innovation Models in Medical AI” on SSRN. Here is the abstract:

In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those which resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those that relate to quality improvement and optimizing use of scarce facilities, have been largely absent from the discussion thus far. These AI innovations have the potential to shed light on important aspects of health innovation policy. First, these AI innovations interact less with the legal regimes that scholars traditionally conceive of as shaping medical innovation: patent law, FDA regulation, and health insurance reimbursement. Second, and perhaps related, a different set of innovation stakeholders, including health systems and insurers, are conducting their own research and development in these areas without waiting for commercial product developers to innovate for them. Third and finally, the activities of these innovators have implications for health innovation policy and scholarship. Perhaps most notably, data possession and control play a larger role in determining capacity to innovate in this space, while ability to satisfy the quality standards of regulators and payers plays a smaller role, relative to more familiar biomedical innovations such as new drugs and devices.

Schmitt on Autonomous Cyber Capabilities and the International Law of Sovereignty and Intervention

Michael N. Schmitt (University of Reading School of Law; Lieber Institute, USMA at West Point, Naval War College – Stockton Center for the Study of International Law “Autonomous Cyber Capabilities and the International Law of Sovereignty and Intervention” (96 International Law Studies 549-576 (2020)) on SSRN. Here is the abstract:

This article explores the intersection of autonomous cyber capabilities and two primary rules of international law — the respect for the sovereignty of other States and the prohibition on coercive intervention into another State’s internal or external affairs. Of all the rules of international law, these are the likeliest to be violated through employment of cyber capabilities, whether autonomous or not. This raises the question of whether a cyber operation that involves autonomous capabilities presents unique issues with respect to the application of the two rules. The article concludes that while there are numerous unsettled issues surrounding their application to cyber operations, the fact that a cyber operation employs autonomous capabilities has little legal bearing on the resolution of those issues. Rather, autonomy simply makes it more difficult, at least at times, to confidently apply the rules because of the uncertainty as to the consequences. Yet, these are dilemmas of fact, not law, and must be understood and acknowledged as such.


Narechania & Stallman on Internet Federalism

Tejas N. Narechania (University of California, Berkeley – School of Law) and Erik Stallman (University of California, Berkeley – School of Law) have posted “Internet Federalism” (Harvard Journal of Law & Technology, Forthcoming) on SSRN. Here is the abstract:

The internet is not a cloud. Rather, it is a series of real cables, wires, radio links, and switches connecting places that employ real people and house real computers. Each of these components of the internet’s infrastructure operates in a distinct locale and is subject to distinct market constraints.

This basic yet significant descriptive insight has important implications for regulatory cooperation and competition between state and federal authorities regarding broadband internet access. In the latest battles over network neutrality regulation, for example, state and federal regulators have found themselves at odds over the scopes of their respective authority. The Federal Communications Commission has suggested that the internet’s “inherently interstate” nature, together with its own disavowal of regulatory power over broadband carriage, preempts state regulatory power. But some states insist that they retain the authority to regulate various aspects of these services, local and beyond.

So where on the internet does state power end and federal power begin? The long history of competition and cooperation between state and federal communications regulators suggests a tradition—incomplete and imperfect in places—of subsidiarity, locating decisional power at the most immediately salient local jurisdiction. Such an approach can—and should—inform the allocation of shared regulatory authority over the internet’s infrastructure and services, too. The internet is not one grand, monolithic, interstate thing, immune from state and local regulation under the dormant commerce clause, doctrines of federal preemption, or related limits on state power. Rather, whether states may (and should) regulate depends on technical specifics and regulatory effects. Hence, where local concerns predominate, local authorities may be our most competent regulators; and where federal concerns predominate, federal authorities should take the regulatory reins. Such a pragmatic approach yields important lessons for regulatory power online. Some aspects of internet service require a local touch. Others do not. But identifying an appropriate site for resolving such policy matters demands a close understanding of the technical, market, and regulatory structure of the communications networks that form the modern internet.


Scherer & Neesam on Why Socio-Technological Conditions Lead to Organized Immaturity and What to Do About It 

Andreas Georg Scherer (University of Zurich – IBW Department of Business Administration) and Christina Neesham (Newcastle University Business School) have posted “New Challenges to Enlightenment: Why Socio-Technological Conditions Lead to Organized Immaturity and What to Do About It” on SSRN. Here is the abstract:

Organized immaturity can be defined as the erosion of the individual’s capacity for public use of reason, due to surveillance and control mechanisms of socio-technological systems, ideologies, or autocratic leaders and regimes. Such pushbacks on the Enlightenment have been a concern for philosophers and social theorists. Today, technological advancements of the Fourth Industrial Revolution (such as social media, Internet of Things, smart cities) are inducing new and even more sophisticated forms of organized immaturity. Left to their own devices, systems initially designed to meet human needs tend to slide from service to paternalism, with undesirable reductionist, totalizing and infantilizing effects. To counteract the effects of organized immaturity on individuals and society, we suggest two social mechanisms. Firstly, disorganizing (or anti-organizing) organized immaturity seeks to protect or increase negative freedom (‘freedom from’) of individuals. Secondly, organizing individual and collective maturity emphasizes the strengthening of positive freedom (‘freedom to’) of individuals as well as social groups and collectives.