From France to the EU: A Test-and-Expand Approach to EU AI Regulation

Photos © Aditya Mohan.

Reflecting on Thomas Jefferson's insight that laws and institutions must go hand in hand with the progress of the human mind,

"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors,” 

we see this dynamic unfold in the context of artificial intelligence (AI) regulation within countries that are not leading in AI innovation, such as those in the European Union (EU). These countries often expedite AI regulation, potentially as a mechanism to mitigate their lack of direct financial benefit from AI advancements by controlling how AI is deployed. This approach underscores the notion that regulations frequently trail behind technological innovations and need continual updates to keep pace with technological progress.

 Thomas Jefferson

The US Supreme Court case of New State Ice Co. v. Liebmann was a significant moment in U.S. Supreme Court history, argued on February 19, 1932, and decided on March 21, 1932. It centered around the issue of whether a state could impose licensing requirements on businesses, specifically targeting the New State Ice Company which was challenged by Liebmann in Oklahoma City. The court ultimately decided that such licensing requirements violated the Due Process Clause of the Constitution as they arbitrarily created restrictions on new businesses, particularly when no public need justified such intervention​. Justice Brandeis, known for his progressive views, dissented in this case: 

“To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But, in the exercise of this high power, we must be ever on our guard lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.”

Justice Louis Brandeis's concept of states as "laboratories" of democracy, a more nuanced approach might serve the EU better than its current path toward an EU-wide AI Act. By allowing individual member states, like France, to first test and refine AI policies at a more localized level, the EU could better assess the impact and efficacy of such regulations. This method would enable the EU to implement policies that are proven to work on a smaller scale before scaling them up across all member states, ensuring that regulations are both effective and adaptable to the fast-paced evolution of AI technologies. Such a strategy would promote a more organic integration of regulations and technological development, potentially fostering an environment where innovation can thrive alongside necessary safeguards.

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