GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2026

Status

Working

Abstract

Artificial intelligence is accelerating American innovation and strategic advantage. The governance task is to provide predictable compliance baselines that support scale and competitiveness while remaining workable under executive branch policy, statutory baselines, and the rules that now govern the administrative state. Congress remains slow and factional, and agencies face rising procedural and remedial constraints. Recent Supreme Court doctrine has reduced the administrative state’s interpretive and enforcement leverage. Regulated entities can challenge agency rules when those rules newly impose concrete harm, litigate statutory meaning without Chevron-style mandatory deference to agency statutory interpretations with limited exceptions, and invoke strengthened procedural safeguards in agency enforcement proceedings. Meanwhile, executive branch AI policy is variable across presidential administrations, and states are producing a patchwork of AI mandates.

This Article argues that these institutional conditions will make soft law, especially industry self-regulation through structured self-regulatory organizations, a primary mechanism of near-term United States AI governance. It develops a framework of self-regulatory optionality, mapping governance architectures from voluntary codes and standards bodies to organizations that promulgate enforceable rulebooks, conduct audits, and impose meaningful sanctions through membership, certification, and market access levers. Drawing lessons from established self- regulatory ecosystems, the Article identifies practical constraints on private governance, with antitrust as the central limiting doctrine, and it emphasizes design choices that increase credibility, including transparent procedures, due process protections, and carefully bounded information sharing. A frontier AI case study explains why credible self-regulation can be economically rational rather than merely aspirational. Finally, the Article describes how federal actors can reinforce effective self-regulation through procurement-linked benchmarks and related cooperation mechanisms, and how later codification can support federal preemption where state regulation becomes conflicting or excessive.

GW Paper Series

2026-11

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