Inside the Courts: Structure, Composition, and Working Methods of the Austrian Constitutional Court and the United States Supreme Court Compared
Authors Tobias Huber and Steven G. Dabney, Jr., highlight the distinct differences in judicial tenure, court calendars, and dissenting opinions between two of the world's highest courts, ultimately arguing that the Austrian model's simple constitutional framework makes it far more adaptable for modern emerging democracies than the U.S. system.
Inside the Courts: Structure, Composition, and Working Methods of the
Austrian Constitutional Court and the United States Supreme Court Compared
Tobias Huber & Steven G. Dabney, Jr.*
Introduction
Austria and the United States, sitting over 8,000 kilometers, or 5,000 miles, away from one another, differ in numerous respects—perhaps most fundamentally, in the basic architecture of their legal systems: the former is rooted in civil law tradition, while the latter operates under common law. Yet in one notable regard, the small Republic of Austria and the vast United States share the podium: each country laid the foundations for one of the two prevailing models of constitutional review worldwide.[1]
Constitutional review, in a narrower sense, refers to a court’s power to declare acts of the legislature unconstitutional.[2] While these two systems depart on the question of whether this mandate should be fulfilled unilaterally, by a single specialized court, or collectively, by a broad category of courts, both systems have a supreme organ of the judiciary that retains the final say on constitutional questions.
The genesis of these courts, as well as the frameworks they operate in, have attracted considerable attention in legal scholarship.[3] Comparative analyses of the characteristics of the two systems have likewise been undertaken.[4] What follows now is, therefore, not intended as an exhaustive comparative analysis of the two systems in their entirety. Rather, the focus will be on a dimension that has received considerably less scholarly attention: the organizational framework of the courts, with particular emphasis on their institutional design and how they work within the legal frameworks governing them.
The aim of this paper is to outline the composition, methods of operation, and decision making of the Austrian Constitutional Court and the United States Supreme Court. The first two parts of the article set out the core organizational structures and methods of decision-making of each court. Part III explores the courts’ similarities and differences, reflecting on which court may demonstrate greater effectiveness in specific areas—and what each court might take away from the other.
I. Composition, Functioning, and Working Methods of the Austrian Constitutional Court
A. Characteristics of the Austrian Constitutional Review
In Austria, the institutional framework for judicial review of legislation is centralized in one single entity: the Austrian Constitutional Court (“Verfassungsgerichtshof”). Drawing upon the concept brought to its definitive form by Viennese legal scholar Hans Kelsen[5]––who referred to the Austrian Constitutional Court as his “liebstes Kind”[6]––the Court[7] has remained largely unchanged since its establishment in 1920 in terms of its powers and basic organizational structure.[8]
With respect to some of its current powers and specific institutional arrangements, the Austrian Constitutional Court had a predecessor in the Imperial Court of Justice (“Reichsgericht”)[9] that heard jurisdictional disputes and acted as a special administrative court for the Austrian part of the Austro-Hungarian Empire (indeed, the powers of the Imperial Court of Justice were designed far more narrowly, as it lacked the authority to review laws for their constitutionality).[10] Furthermore, the origins of the Court’s current power to rule on actions asserting the responsibility of supreme authorities can be traced back to the special State Court of Justice (“Staatsgerichtshof”), which was established in 1867.[11]
Yet, Austria ventured into uncharted territory when incorporating the statutes about the Constitutional Court into the Austrian Constitution of 1920––which is the twelfth-oldest constitution still in force around the globe[12]––as it was the first constitution worldwide to effectively implement a system of centralized legal constitutional review.[13] Emphasis, however, must be placed on centralized: Austria did not invent judicial review. The concept can be traced back to the U.S. Judiciary Act of 1789[14] and the Federalist Papers.[15] First applied by the U.S. Supreme Court itself in 1803 in the case of Marbury v Madison,[16] the U.S. model subsequently influenced early debates about constitutional jurisdiction in Germany and Austria.[17] Notably, supreme courts in several Latin American countries were likewise empowered to rescind unconstitutional laws well before the concept became established in Europe.[18] The distinctive and innovative feature about the Austrian system, however, was the introduction of a centralized system of constitutional adjudication, vested in a separate and specialized constitutional court.[19] In the course of the twentieth century, this concept was adopted by numerous other constitutions,[20] with the German Federal Constitutional Court being the most prominent example.[21] The concept “of a separate constitutional court may be said to be Austria’s leading export” in the legal world.[22]
The Austrian Constitutional Court, within the system of separation of powers, is an organ of the judiciary, whose decisions may invalidate acts of the legislative and executive branch.[23] The Court is supposed to guarantee that, as Austrian scholar Walter Berkaput it, “law is always above power.”[24] Its central mechanism to fulfill this task is its authority to review general executive orders (ordinances), laws, and international treaties for their conformity with higher-ranking law. If the Court finds a provision to be unlawful, it may rescind it. If necessary, the Court can even rescind statutes with constitutional status in case they conflict with the entrenched principles of the Austrian Constitution[25] (to date, however, the Court has exercised this power only once, invalidating a constitutional provision in a case decided in 2001).[26] For this reason, the Court is often referred to as a “negative legislator.”[27] This power is exclusive, no other entity in the Austrian legal system is entitled to examine the legality of laws.[28] At the same time, the Constitution allows all other courts to challenge the unlawfulness of ordinances, laws, or international treaties before the Constitutional Court.[29] However, the Court may not only act upon application by a court or an affected individual,[30] it can also act ex officio when the provision is applicable in a pending proceeding before the Court.[31]
Unlike Germany, the Austrian federal states do not have their own constitutional courts.[32] The Austrian Constitutional Court’s competence of review therefore applies to both federal and state laws (“Bundesgesetze und Landesgesetze”).[33] Accordingly, the Constitution seeks to ensure that the Court’s institutional structure reflects the federal character of the Austrian legal system: first, some of the Members of the Court[34] are nominated by the Federal Council (the federal state chamber of the legislature).[35] Second, three Members of the Court must have their permanent place of residence outside of Vienna.[36] Whether the latter requirement genuinely contributes to embedding the federal realities of the Austrian legal system within the structure of the Court, however, appears highly doubtful.
In addition to its competence to review legislation, the Court is entrusted with two other main responsibilities that define the core of its mandate:[37] it examines whether decisions of lower administrative courts respect fundamental rights[38] and it decides on conflicts of jurisdiction between state institutions (to a limited extent).[39] Furthermore, the Court exercises powers that do not necessarily have to be exercised by a constitutional court.[40] These powers include to review the lawfulness of elections,[41] to decide on trials of officials,[42] or to rule on financial claims against the federal government, states, and municipalities, to name a few.[43] On the other hand, the Austrian Constitutional Court does not have the power to review court rulings in civil and criminal matters or from the Supreme Administrative Court.[44]
As a result, the Court handles a large number of cases every year. In 2024, the Court dealt with 5,376 newly pending cases and 989 cases from the previous year.[45] It is worth noting that it settled 5,346 of these cases,[46] averaging only seventy-nine days per case.[47] These figures—which are comparatively good by international standards—can be attributed to the well-thought-out organization and working methods of the Austrian Constitutional Court.
B. Composition of the Constitutional Court
i. Organizational Framework
In Austria, as a civil law country, the legal provisions governing the Constitutional Court are entrenched in the Austrian Constitution and further specified in the relevant Constitutional Court legislation.[48] The organizational framework of the Court is regulated in considerable detail in Articles 137 to 148 of the Austrian Federal Constitutional Act (FCA) (“Bundes-Verfassungsgesetz [B-VG]”). Further provisions are set out in the Constitutional Court Act of 1953 (“Verfassungsgerichtshofgesetz [VfGG]”) and in the Rules adopted by the Court itself in 1946.
The Austrian Constitutional Court consists of fourteen members: one President of the Court (“Präsident des Verfassungsgerichtshofes”), one Vice-President of the Court (“Vizepräsident des Verfassungsgerichtshofes”) and twelve other judges, called additional Members of the Court (“weitere Mitglieder”).[49] Plus, there are six substitute Members.[50] As to numbers, the Austrian Constitutional Court corresponds to most other European constitutional courts.[51] To manage its heavy workload, the Court has its own administrative apparatus, which currently consists of around 110 employees, including both jurists (legal staff) and other personnel.[52] A significant share of the Court’s legal staff consists of law clerks (“Verfassungsrechtliche Mitarbeiter”), who help the responsible Members of the Court draft the Court’s opinions. The law clerks usually are recent law school graduates, most of whom have completed a Ph.D. in legal studies or worked as research and teaching assistants at a university, and stay with the Court for approximately four years.[53] Usually, they strive for a promising career afterwards—some Members of the Court were once law clerks themselves.[54]
The President, the Vice-President, all additional Members, and substitute Members of the Court must hold a degree in Austrian law and have at least ten years of professional legal experience.[55] In regards to what qualifies as “professional legal experience,” the Constitution explicitly lists judges, administrative officials (civil servants), and university law professors as examples.[56] A specified number of Members must be appointed from this group of professions; however, in practice, the Court regularly includes attorneys among its members as well.[57] As most other European countries, the Austrian Constitution therefore stipulates a monopoly of jurists at the Court.[58] Special knowledge in the field of constitutional law is, however, not required.
Currently the Court consists of eight university professors, three attorneys, two administrative officials (civil servants), and one judge from the Supreme Administrative Court.[59] This shows that the constitutional regime governing the composition of the Court results in a mix of several legal professions in practice. Currently, four of the fourteen constitutional judges are women.[60]
ii. Appointment of New Members of the Court
All new judges—including the President and the Vice President of the Court—are appointed through a coordinated process with the legislator and the executive branch working together and sharing nomination rights.[61]
The President of the Court, the Vice President, six other Members and three substitute Members are nominated by the federal government; three other Members and two substitute Members are nominated by the federal chamber of the legislature (National Council); and three other Members and one substitute Member are nominated by the federal state chamber of the legislature (Federal Council).[62] If an appointment is made by one of the legislature’s chambers, there is, as in the United States, a hearing procedure. A key observation at this point: more than a half of the overall Members of the Court are nominated by the executive branch.
After either the federal government or one of the two chambers of the legislature proposes a candidate to the Federal President,[63] depending on the respective responsibility for proposing a new member, the Federal President then formally appoints the new member.[64] Although the Federal President is bound by the proposals, they have a margin of discretion as they can always reject a proposal.
In practice, this procedure results in political parties effectively controlling the nomination process:[65] although the judges do not have to be (officially) affiliated with political parties, “they usually have a reputation for being politically oriented in a certain direction.”[66] This has repeatedly given rise to criticism of a possible political dependence of constitutional judges;[67] however, in an overall perspective, such criticisms arose only sporadically and typically dissipate quickly—most probably because the Members of the Court are usually “very keen to behave strictly neutrally”[68] and the case law of the Court does not provide objective evidence of partisan bias in the Court’s decisions either.[69]
In addition, the Austrian Constitution establishes particularly strict rules (by international standards)[70] of incompatibility with other state offices for the Members of the Court: Members of the federal government, a state government, the federal and the state legislator(s), or the European Parliament may not serve on the Court.[71] Any person who has held any of these positions within the past five years prior to appointment is ineligible as President or Vice President of the Constitutional Court.[72] Originally, these incompatibility provisions applied exclusively to the President and the Vice President of the Court. Consequently, they affected only a part of the Court’s composition. However, presumably in response to a case involving a former Federal Minister of Justice who moved almost seamlessly from his governmental office to being a Member of the Constitutional Court and resigned from his Court position after only three years (reportedly to pre-empt impeachment as a Member of the Court, according to media speculation),[73] these rules have recently been tightened: following a constitutional amendment in 2024, the restrictions were extended to all (other) Members of the Court. Now, any person who has held one of the aforementioned positions within the preceding three years is ineligible for appointment as a Member or a substitute Member.[74] The shift from being a high-ranking politician to being a constitutional judge now depends on having completed a political “cooling-off” period of several years. Thereby, the independence of the Court should be preserved, and patronage of office be prevented.
iii. Status and Tenure of the Members of the Court
Austrian constitutional judges do not perform their duties at the Court on a full-time basis.[75] Those who are judges, lawyers, and university professors therefore remain active in their main profession; only administrative officials are released from their duties.[76] The rationale of this concept is to broaden the Court’s substantive expertise by allowing practical experience from different areas of legal practice to be incorporated into its deliberations.[77]
Reality, however, deviates from this idea: in practice, the original profession becomes subordinate to the activity as a constitutional judge.[78] This is primarily due to the current workload at the Court.[79] The question of whether the concept of holding the position of a constitutional judge as a secondary office remains appropriate seems worthy of discussion[80]—especially against the backdrop of the Court’s volume of cases and potential conflicts of interest of the Members.
The age limit for Members and substitute Members of the Court is seventy years. Their term of office expires on December 31, of the year in which they attain that age.[81] Things were, however, not always this way: the age limit was introduced by the Constitutional Amendment of 1929, nine years after the Austrian Constitutional Court was established.[82] Under the original version of the FCA of 1920, members had been appointed for life.[83] The introduction of a mandatory retirement age was based on the intention to “de-politicize” the Court[84] by regulating the office of a constitutional judge more closely in accordance with the principles applicable to ordinary judges, among which was the establishment of an age limit.[85] Indeed, establishing a high retirement age is considered to be the most effective safeguard of judicial independence within a constitutional court.[86] The rather long term of office (compared to other European countries, where fixed-terms usually range, for example, from nine years in Portugal to twelve years in Germany)[87] leads to a high degree of continuity, so that many judges have been with the Court for more than two decades.[88] In Austrian legal scholarship, however, it is debated whether the age limit is too high, given the general statutory retirement age in Austria being sixty-five.[89] Currently, however, there are no indications that the legislature intends to lower the age limit; rather, it may be assumed that the current legal framework has proven its worth.[90] It may furthermore be pointed out that the term of office of judges at the European Court of Human Rights likewise ended upon reaching the age of seventy until a few years ago[91] (in 2021, the previously explicit age limit was repealed and now applies implicitly, effectively resulting in an age limit of seventy-four years).[92]
The Members of the Court are independent in the exercise of their legal office.[93] Parties to the Court’s proceedings do not have the power to challenge Members of the Court on grounds of bias.[94] The law, however, provides for grounds of exclusions that must be observed by the judges ex officio.[95]
In certain cases, particularly if a Member disregards three successive invitations to attend hearings of the Court without providing an adequate excuse,[96] has shown themself unworthy of the respect and trust required by the office (through conduct in or outside office), has grossly violated the duty of confidentiality, or becomes unfit to perform their official duties due to physical or mental incapacity,[97] the Court can decide to remove a Member from office with a two-thirds majority of the Members. To date, however, this has never happened.[98]
C. Decision Making and Working Methods
i. The “Plenary” as a Unified Adjudicatory Body and the
“Small Assembly” as Its Efficiency Boost
Unlike Austria’s other two supreme courts—the Supreme Administrative Court and the Supreme Court of Justice—, the Constitutional Court does not operate in panels (“Senaten”).[99] Rather, it has a single decision-making body: the plenary (“Plenum”). The rationale for the Court always adjudicating as one single decision-making body—as noted, unique among Austria’s three supreme courts—becomes clear when looking at the early debates surrounding the establishment of constitutional adjudication in the nineteenth century.[100] It was agreed at the time, as remains the case today, that the powers of nomination should be shared between the legislator and the executive branch. This arrangement, however, was accompanied by concerns that the Court might be divided into two separate panels, one composed of members nominated by the legislator, and the other of members nominated by the executive branch.[101]Therefore, members of the 1848 Kremsier Parliament “expressly requested that the Court always act as one entity.”[102]
This body generally includes the President, the Vice President, and the 12 additional Members, whereby a quorum is obtained if at least eight Members are present in addition to the President.[103] If a Member is absent, a substitute Member steps in.
For certain cases defined by law,[104] however, a simplified procedure applies, for which a quorum consisting of five judges (a chair and four other Members) is sufficient,[105] known as “Small Assembly”. More than ninety percent of the cases at the Constitutional Court are decided in this small constellation.[106] Although the concept of the Small Assembly is highly relevant in practice, it is not mentioned in the Constitution. Some scholars hence question its constitutionality.[107] In 2002, however, the Court itself had to decide on the constitutionality of the provision providing the legal basis for the Small Assembly procedure. The Court held that, particularly against the background of the continuous expansion of the Court’s powers, its proper functioning can only be guaranteed if it is able to decide certain cases with a reduced number of voting Members and without extensive written reasoning. Hence, the Court itself considered the provision to be crucial for the Court’s functionality and found it to be constitutional.[108]
ii. Deliberations and Decision-Making
The Austrian Constitutional Court is not constituted as a continuously sitting tribunal. Deliberations take place four times a year within the framework of so-called sessions (“Sessionen”), which usually last around three weeks[109] in the months of February/March, June, September/October and November/December.[110]
Preparations for the consultations take place between the sessions. The Court appoints a number of its Members the role of “Permanent Reporters”[111] for a period of three years,[112] and they are tasked with drafting the Court’s opinions, assisted by the aforementioned law clerks.[113] The number of Permanent Reporters is determined by the Court itself; currently, there are twelve Permanent Reporters.[114] Hence, almost every Member of the Court[115] simultaneously acts as a Permanent Reporter and is therefore present at the Court (whereas, in the early days, two Permanent Reporters were sufficient; all other judges were not involved in the preparatory work and would only convene at the Court for deliberations).[116] Without the collective effort of almost all judges preparing the cases between the sessions, the Court would not be able to handle its caseload.[117]
The President of the Court assigns the cases to the Permanent Reporters, seeking to assign related cases to the same Permanent Reporter, distribute the workload evenly, and take prior legal experience into account.[118] Drafts prepared by the Permanent Reporters that are intended for deliberation at a session must be circulated to all Members (even where they are proposed to be dealt with in the Small Assembly)[119] before Friday at noon in the penultimate week before each session.[120] Generally, findings of the Constitutional Court’s must be based on a public oral hearing, however, numerous, far-reaching exceptions to this general rule make public oral proceedings rare in practice.[121] On average, only about ten such hearings take place each year.[122]
Decisions of the Court—whether made in the plenary or in the Small Assembly—are reached by simple majority.[123] In other words, an opinion drafted during the preparations must obtain the support of more than half of the voting members during its deliberations. The President of the Court, as a general rule, does not have a vote.[124] However, if one of the opinions received exactly half of the votes, the President is required to cast a decision.[125] At times, heightened voting requirements apply: a unanimous decision is required to dismiss a case and refuse further consideration on the grounds of manifest lack of jurisdiction, failure to comply with a deadline, failure to remedy formal deficiencies, res judicata (i.e., matters that have already been adjudicated), or lack of standing.[126]
The voting results are not published.[127] Unlike the ECHR or U.S. Supreme Court, the outvoted members are not allowed to publish dissenting opinions on decisions.[128]
D. Conclusion
Constitutional jurisdiction in Austria is exercised by a single institution, the Constitutional Court. With its wide range of powers concerning key areas of a liberal democratic state, the Austrian Constitutional Court plays a central role not only in safeguarding the precedence of the Constitution, but the system of Austria’s rule of law in general. Its authority to review acts of the executive and legislative branch, as a body of the judiciary, secures the Constitution’s precedence of all state action.
Both the role of the Court in the Austrian constitutional state and its organizational structure and working methods are distinctive. These include the Court's ability to rescind laws, the legal status of its members, who come from a wide variety of legal professions and perform their duties as constitutional judges (at least in idea) on a part-time basis, and the non-permanent establishment of its uniform panel of judges.
II. Composition, Functioning, and Working Methods
of the United States Supreme Court
A. Characteristics of the United States Constitutional Review
The Supreme Court of the United States of America is “the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States.”[129] Article III of the U.S. Constitution—the foundational document, ratified in 1788, which frames the structure of the U.S. federal government—bestowed the powers of the federal judiciary onto “one supreme Court,” along with “such inferior Courts” to be established by Congress.[130] Although the framers explicitly referenced the necessary existence of a “supreme Court” in the Constitution, they left the task of precisely defining the Court’s role and structure to Congress. When the nation’s First Congress convened in 1789, it fulfilled the mandate of Article III, section 1 with the enactment of the Judiciary Act of 1789.[131] The Act established thirteen district courts and three circuit courts across the country, along with a Supreme Court composed of six Justices—five Associate Justices and one Chief Justice.[132] The Court has evolved significantly in both form and function since its inception.
The Court’s power of judicial review, the authority to declare government actions unconstitutional, is not directly addressed in any provision of the U.S. Constitution.[133] Rather, the Supreme Court’s first authoritative legal assertion of this power came in the 1803 case of Marbury v. Madison, where Chief Justice John Marshall proclaimed that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” and “a law repugnant to the constitution is void[.]”[134] Here, the fundamental pretext of Chief Justice Marshall’s assertion of the Court’s power was that if the text of the Constitution is to have meaning, its Framers must have intended some manner in which its meaning could be authoritatively interpreted.[135]
Legal academics and historians are divided on whether Marbury truly “created” judicial review in the United States, or merely “institutionalized” a doctrine that had already been informally “approved by the vast majority of the American political leaders during the founding period of the Constitution and thereafter.”[136] Regardless, the Court’s assertion of such authority was ultimately reinforced by the lack of challenge or opposition by the legislative and executive branches of the early federal government.[137] As has been the case in many instances throughout American history, congressional acquiescence allowed a constitutional power vacuum to be filled by a more zealous branch of government.
The Constitution’s Supremacy Clause, deeming the “Constitution . . . the supreme Law of the Land,”[138] and its role in the structure of American federalism also bolstered the credence of judicial review. Where the Constitution and state law had the potential to intersect and conflict, it was essential to have some method for determining when state legislatures had exceeded their authority to legislate on certain issues or when state courts had improperly applied federal law. With “[l]itigation being the most practical method for uncovering conflicts between state law and the Constitution, federal courts became the natural repository for ultimate constitutional review of state action.”[139]
Constitutional review in the United States is uniquely decentralized: the Supreme Court does not have exclusive jurisdiction over all cases or controversies involving a constitutional question.[140] Rather, all Article III federal and traditional state courts of general jurisdiction are able to address issues of constitutionality, subject to an appellate court’s review.[141] Under the Supremacy Clause, both state and federal courts alike are bound preeminently to render decisions according to the principles of the U.S. Constitution and other sources of federal law.[142] While case law has established the Supreme Court as the final authority on interpreting federal law, other federal courts also possess constitutional authority to review state court decisions that may conflict with the Constitution or federal law.[143] When a case requires a state court to interpret federal law, its decision is appealable directly to the Supreme Court.[144] As such, despite the decentralized model, the Supreme Court remains “supreme” in all constitutional controversies as the final arbiter of federal law.
B. Composition of the United States Supreme Court
i. Organizational Framework
The Constitution addresses neither the size of the Supreme Court nor any defined roles for Justices. Pursuant to Article III, section 1, these terms are set by Congress. From 1789 through the conclusion of the American Civil War, numerous Acts of Congress altered the number of concurrent seats on the Court, ranging from five to ten total seats at a time.[145] Since 1869, that number has remained fixed at nine.[146] This includes one Chief Justice, who serves as the presiding officer of the Court, and eight Associate Justices.[147]
Each Justice is permitted to hire their own “personal staff, including two secretaries, a personal messenger, and up to four law clerks . . . ” per Court term.[148] Clerkships are reserved for attorneys with at least one year of experience clerking for a state or federal judge; in such a role, they assist with researching legal issues, determining which cases to allow to be heard, and drafting the Court’s opinions.[149] The Court is also assisted by nine Court Officers who undertake much of the administrative workload, allowing the Justices to remain primarily focused on substantive legal matters.[150] Additional “supporting departments” include the public information office, the data systems office, the office of legal counsel, and the office of the curator.[151] These offices act as the information liaison between the Court and the public, provide technical support, serve as legal counsel for the Court, and facilitate exhibits and educational programs for the public, respectively.[152] The Court even retains an auxiliary staff that includes telephone operators, woodworkers, first-aid staffers, a barber, and a seamstress.[153] These staffers, while uninvolved in the substantive work of the Court, ensure that the Court, its property, and its employees are properly taken care of and able to operate efficiently.
ii. Requirements and Professional Background for Appointment
The Constitution sets no formal qualifications for the appointment of Justices to the Supreme Court. Justices may be appointed regardless of age, native-born citizenship, education, or professional background.[154] Despite the lack of required legal education, historically, all Justices have been trained in the law and demonstrated adequate, if not exceedingly impressive, legal experience.[155] Many of the eighteenth and nineteenth century Justices studied the law through apprenticeships, as the small number of formal American law schools made institutional legal education rare.[156] Ultimately, the method by which appointment of the Justices occurs serves as the only formal administrative roadblock preventing any woefully underqualified Justices from making their way onto the Court.
iii. Appointment of Supreme Court Justices
Members of the Supreme Court of the United States are appointed for life; vacancies occur only after a Justice dies, retires, or resigns.[157] Upon any of these triggering events, it becomes the constitutional responsibility of the President to nominate a successor for the vacating Justice.[158] Importantly, however, the President is constitutionally mandated to make their selection “with the Advice and Consent of the Senate,”[159] meaning any appointee will be subject to Senate confirmation proceedings. Since the 1960s, the Senate Judiciary Committee has begun this process in three steps: first, they conduct a pre-hearing investigation; second, they conduct public hearings with the appointee; and third, they issue the Committee’s decision.[160] The full Senate may vote to confirm the appointee only if a majority of the Committee votes in favor of their approval; if the appointee fails to secure the support of a majority of the Committee members, the confirmation process halts and the President must nominate a new appointee.[161] Once approved by the Committee, final confirmation requires only a simple majority of the full Senate.[162]
While the appointment process serves as the only administrative check on the quality of Justices joining the bench, political pressures largely mitigate the risk of underqualified appointees prevailing. By nature of the Senate confirmation process, presidents understand the necessity of only nominating those with “unquestionably outstanding legal qualifications” if they want to secure the best odds for their nominee being confirmed.[163] Politics aside, Senators will always expect a high degree of merit as the bare minimum from any nominee to the nation’s highest tribunal. The vast majority of modern nominees have had distinguished legal careers as lower court judges, legal scholars, and private practitioners.[164] Sixty-five percent of Supreme Court nominees since 1945 were serving as federal appellate court judges at the time of their appointment.[165]
iv. Legal Status of Supreme Court Justices
The life tenure enjoyed by Supreme Court Justices under Article III is intended to structurally insulate the judiciary from external political pressures. Justices do not campaign to obtain or retain their positions, their terms on the bench are not time-limited, and they may not be removed based on the will of any superior or the public at large. Rather, Justices may be removed from the bench only through impeachment by Congress.[166] Impeachment of a Justice, or any other Article III judge, requires a majority vote by the House of Representatives.[167] If a majority is reached in the House, then the Justice is given a trial, conducted by the Senate, with the Vice President of the United States presiding.[168] If two-thirds of the Senate vote to convict, the Justice will be removed from the bench.[169] This is extremely rare; a Supreme Court Justice has only been impeached once in the nation’s history—Justice Samuel Chase was impeached in 1804 for exhibiting unethical conduct in “politically sensitive cases,” though he was never convicted.[170]
Because Justices, barring impeachment, serve indefinitely and their successors are appointed by the President, their decision to retire and the timing of that decision is highly consequential. Justices who want a like-minded successor are incentivized to retire while a President matching their views holds office. This form of partisan scheming has been a catalyst of public pressures to reform the terms of justices’ tenures.[171]
The Supreme Court generally operates full-time, in its official capacity, over a nine-month term: from the first Monday in October to the end of June.[172] The Justices’ “summer recess” spanning July through September is something that no other federal judges receive.[173] During such breaks, the Justices do not hear oral arguments or meet to decide cases. However, their work is not halted entirely. In the summer months, Justices must still contend with the court’s emergency, or “shadow” docket, consisting of applications seeking immediate action from the Court when circumstances dictate that a speedy resolution is required.[174] The Court’s robust administrative staff network is crucial in allowing the Justices to keep up with their duties year-round and ensure the effective application of law.
C. Decision Making and Working Methods
i. Case Intake and the Certiorari Process
The Supreme Court has both original and appellate jurisdiction. Its original jurisdiction is limited to cases involving disputes between states or among ambassadors and other high-ranking ministers.[175] The vast majority of the Court’s caseload, however, comes from its appellate docket.[176] Once a final ruling has been reached in a case by the highest appellate court within the relevant jurisdiction (generally, a Federal Circuit Court of Appeals or a state court of last resort), a party to the action may petition the Supreme Court for review by asking the Court to grant a writ of certiorari.[177] Once a petitioner files their certiorari petition, any respondents have thirty days to file a brief arguing why the case is not fit for the Supreme Court’s review.[178] The Court may also allow third parties who are uninvolved in the particular case at issue, but whose interests are implicated by the case’s potential outcome, to file amicus curiae briefs to provide the Court additional information or arguments relevant to how a case should be analyzed.[179] The Court then reviews the petition and opposing or supporting briefs and takes a vote of the Justices to determine whether the case should be heard. Under the popularly titled “Rule of Four,” with the Court’s current composition of nine total Justices, the votes of only four Justices are required to accept a case.[180] On average, the Court receives over 7,000 petitions each year—and of those, generally less than 200 are accepted and heard.[181]
As previously mentioned, the Court must also occasionally address cases through its emergency, or “shadow” docket. This is where the Court rules on “procedural matters, such as scheduling, and considers requests for emergency” relief without full briefing or oral argument.[182] Since 2023, the docket has been used with increasing frequency, particularly for addressing matters concerning the constitutionality of actions taken by the Trump Administration.[183] Many have criticized the Court’s increased use of the emergency docket for making such significant decisions.[184] The lack of “full briefing, oral argument, and deliberation among the [J]ustices,” along with the lack of required explanation for its rulings, has resulted in the Court issuing decisions with “great consequences” for non-parties with very little transparency regarding its justifications for arriving at a particular decision.[185]
ii. Oral Argument and Deliberations
Cases for which certiorari was granted proceed to oral argument after the parties’ briefs have been reviewed. Generally, only one attorney from each side of the litigation may participate, and each is given thirty minutes to present their case.[186] Though, this rarely, if ever, is one continuous thirty-minute speech; oral arguments are often dominated by questioning from the Justices looking for clarifications on a party’s argument.[187]
Following oral arguments, the Justices hold a conference to discuss the case and address each other’s concerns in a private conference room adjacent to the Chief Justice’s chambers.[188] As a matter of tradition, each conference begins with the Justices convening and shaking hands.[189] As they delve into the substance of the cases before them, each Justice is granted the opportunity to offer an uninterrupted statement, providing their position on the case without discourse from the other Justices.[190] The Chief Justice delivers his statement first, and the Associate Justices then provide their statements in descending order of seniority.[191] While Justices may discuss cases with their law clerks and other administrative staff before a conference, only the Justices themselves are allowed to be present and to participate—absolute confidentiality is observed.[192] Generally, the Court’s consideration of a case ends here, though some Chief Justices have permitted additional open discussions following the conclusion of uninterrupted statements.[193] Justice Antonin Scalia famously complained about the lack of opportunity to persuade the other Justices to reconsider their positions.[194]
iii. Voting and Opinion Assignment
At the conclusion of the nine Justices’ uninterrupted statements, they proceed to a vote.[195] Each Justice’s vote is cast in the same order as their statements were given, beginning with the Chief Justice and descending through the Associate Justices based on seniority.[196] The most senior Justice voting with the majority generally selects the Justice to be tasked with writing the majority opinion.[197] Any holdings expressed in majority opinions represent a binding decision of the Court[198]—a majority of Justices must sign onto the opinion, expressing their agreement with the opinion in its entirety, before it may be publicly delivered.[199] If there are any dissenting Justices, the most senior dissenting Justice selects the Justice to be tasked with writing the dissenting opinion.[200] Justices who agree with the outcome of the case but disagree with the majority’s justifications may write concurring opinions, with which other Justices may join.[201] Likewise, if a dissenting Justice disagrees with any justifications presented in another Justice’s dissent, they may elect to write separately to memorialize their objections.[202] Note, however, that only the holdings of the majority opinion are binding on the lower courts; any other expressions of the Court’s perspective on a particular case are to be treated as mere dicta.
D. Conclusion
The Supreme Court of the United States stands as the central institutional guardian of the Constitution within a structurally decentralized system of judicial review. Though Article III provided only a general blueprint for the federal judiciary, the Court’s most significant authority, the power of judicial review, was cemented through early jurisprudence and the structural logic of federal supremacy.
The Court’s structure and internal organization reflect a deliberate balance between independence and accountability. Life tenure, combined with the political safeguards inherent in the appointment and confirmation process, is designed to insulate the Justices from transient political pressures while preserving public confidence. Though the absence of formal qualifications may not bestow confidence, longstanding professional norms and Senate scrutiny have produced a Court consistently headed by some of the nation’s most highly respected and experienced legal practitioners. Throughout its history, the Court has consistently functioned as a remarkably efficient arbiter of constitutionality, continually evolving in its response to the demands of the United States’ complex federalist system of government.
III. Juxtaposition and Comparison: Parallels, Divergences, and Lessons the Courts Might Learn from One Another
Today, around eighty percent of constitutions around the world empower their courts with some form of judicial review.[203] While the United States was the first country to implement a system of judicial review under a decentralized approach,[204] in recent years, the later-established Austrian model—involving a centralized, separate constitutional court—has surpassed the American model in terms of its influence on the structure of newly emerging democracies worldwide.[205] Concluding our paper, we will outline the differences and similarities in organizational structure and modes of operation of the two Courts and examine what each may learn from each other, and consider why the Austrian model has become more attractive to developing nations.
At the outset, it seems noteworthy that the regulatory framework governing each Court in Austria is set out in considerable detail in the Constitution, whereas in the U.S., neither the size of the Court nor the status of its justices is expressively defined in the Constitution. This is most likely attributable to the fundamental differences of being a civil law versus common law country.
Similarities between the Courts may be observed in the overall working environment and the apparatus assisting the judges or justices, particularly regarding the pivotal role of the law clerks. In other aspects, however, the U.S. Supreme Court appears to benefit from considerably more abundant administrative resources—one can easily imagine that the Members of the Austrian Constitutional Court would equally appreciate amenities such as an in-house barber or tailor.
Further distinction arises in relation to the formal requirements for being a constitutional judge or justice. The U.S. Constitution—at least in theory—affords significantly broader discretion for the selection of its Justices, whereas the Austrian Constitution prescribes specific qualifications concerning legal education and professional experience. In practice, however, both courts are composed of some of the most distinguished jurists in their respective countries (even though, unlike in Austria, there have been members of the United States Supreme Court who did not formally attend law school). While Justices of the Austrian Constitutional Court—at least on paper—exercise their mandate on a part-time basis, their counterparts in the United States serve in a full-time capacity. With regard to professional backgrounds prior to appointment, there is currently a noticeable predominance of university professors in Austria, whereas in the United States, prior judicial service is far more common.
One of the fundamental differences is the judges’ tenure. In Austria, Members of the Constitutional Court must retire upon reaching the age of seventy. In the United States, by contrast, the Justices are appointed for life. Moreover, in Austria, removal from office may be affected only by the Court itself, without the involvement of another branch of state power, whereas in the United States, removal is possible solely through an impeachment action by Congress. A similarity may again be identified in the appointment process: in both the U.S. and Austria, both the executive and legislative branches participate. Furthermore, the process is, in both jurisdictions—perhaps inevitably in the context of a constitutional court—shaped by a political dimension.
Another significant difference concerns the Court’s operational calendar. The U.S. Supreme Court operates on a continuous basis, subject only to a summer recess, whereas the Austrian Constitutional Court sits for only four sessions a year, spanning just weeks at a time.
Finally, important divergences exist with regard to procedural practice and deliberation. In the U.S., oral argument appears to play a central role, while proceedings before the Austrian Constitutional Court are predominantly decided on the basis of written submissions. Most decisively, however, the decision-making process differs: in Austria, voting behavior remains strictly confidential and publishing dissenting opinions are not allowed, whereas in the United States, the votes and opinions of the Justices are made public, and dissenting opinions are formally published.
Ultimately, while the U.S. model of constitutional review has endured in the United States, it pails in comparison to the broad international applicability of the Austrian model. In the U.S., the country’s legal structure needed to be tailored to address issues unique to the United States’s system of federalism—a system not commonly found in most emerging modern democracies. It stands to reason that a democracy spanning approximately 3.5 million square miles, or 9 million square kilometers, may require a unique system of judicial governance that is not wholly exportable around the world. By contrast, the Austrian model is fairly simple and straight forward: the Constitutional Court’s structure, composition, and operations are set out in plain terms in the country’s constitution.
* Tobias Huber, Univ. Ass., LL.B. (WU), LL.M. (WU); Ph.D. Candidate at Vienna University of Economics and Business, Institute for Austrian and European Public Law. Parts of this article are based on a presentation held at the ICON•S 2025 Annual Conference Brasília in July 2025. He is grateful to Thomas Kröll, Sebastian Lendl-Lewisch, Georg Lienbacher and Ulrich Wagrandl for discussions in preparation for that presentation and for valuable comments on this manuscript. He would also like to thank Steven Dabney for agreeing to co-author this article, as well as Casey Parker-Bell and Matthew Chaney, on behalf of the entire team of the KLJO, for making its publication possible. Steven Dabney, J.D. 2026, University of Kentucky J. David Rosenberg College of Law; B.A. Accounting, minors in Political Science and Philosophy 2023, Transylvania University. He would like to thank Tobias Huber for inviting his co-authorship of this article.
[1] Stanley L. Paulson, Constitutional Review in the United States and Austria: Notes on the Beginnings, 16 Ratio Juris 223, 223–24 (2003).
[2] Manfred Stelzer, An Introduction to Austrian Constitutional Law 71 (3rd ed. 2014).
[3] Ewald Wiederin, From the Federalist Papers to Hans Kelsen’s “Dearest Child”: The Genesis of the Austrian Constitutional Court, 76 ZÖR 313, 314 (2021).
[4]See Paulson, supra note 1.
[5] Wiederin, supra note 3, at 325–27. While legal literature may sometimes create the impression that Hans Kelsen was the “inventor” of the Austrian Constitutional Court (see Paulson, supra note 1, at 225 as an example), it has been shown that, although Hans Kelsen undoubtedly managed to connect earlier concepts and traditions to the final form of the Austrian Constitutional Court, preexisting institutions and debates also exerted significant influence on the “Austrian model”, see Wiederin, supra note 3, at 325–27 and Michael Holoubek & Ulrich Wagrandl, A Model for the World: The Austrian Constitutional Court Turns 100, 17 ICL J. 251, 253–59 (2023). However, Hans Kelsen not only contributed to the phrasing of the Austrian Constitution regarding the Constitutional Court but also continued to defend the concept of centralized constitutional jurisdiction ideologically. The related publication of his literary work in America is the reason why the term “Kelsen Court” is still used throughout the world to describe the original model of a centralized constitutional control; see Stelzer, supra note 2, at 72.
[6] Wiederin, supra note 3,at 327 (noting that “liebstes Kind” is German for “dearest child”).
[7] In Part I, references to “the Court” refer to the Austrian Constitutional Court.
[8] See Christoph GrabenWarter, The Austrian Constitutional Court, in 3 The Max Planck Handbooks in European Public Law – Constitutional Adjudication: Institutions, 20, 26 (Armin von Bogandy, Peter M. Huber, & Christoph GrabenWarter eds., 3rd ed. 2020).
[9] Anna Gamper & Francesco Palermo, The Constitutional Court of Austria: Modern Profiles of an Archetype of Constitutional Review, 3:2 J. Compar. L. 64, 65 (2008).
[10]Id.
[11] GrabenWarter, supra note 8, at 26.
[12] Holoubek & Wagrandl, supra note 5,at 252.
[13] Paulson, supra note 1, at 223–24.
[14]Id. at 224.
[15] Wiederin, supra note 3, at 314–17 (referring to No. 22 of the Federalist Papers, written by Hamilton: “Laws are a dead letter without courts to expound and define their true meaning and operation.” U.S. courts have even invalidated a handful of state laws even before the U.S. Constitution was adopted).
[16] For detailedinformation on the beginnings and characteristics on U.S. judicial review,see infra Section II.A.
[17]See Wiederin, supra note 3, at 316–17, 320–21 (regarding the influences of the American system on the early debates about constitutional jurisdiction in Austria and Germany).
[18] Holoubek & Wagrandl, supra note 5, at255.
[19]See Theo Öhlinger, The Genesis of the Austrian Model of Constitutional Review of Legislation, 16 Ratio Juris 206, 207–08.
[20] Gamper & Palermo, supra note 9, at 64.
[21] Paulson, supra note 1, at 223–24.
[22] Holoubek & Wagrandl, supra note 5, at 252.
[23] For background regarding the early, fundamental discussions about the Austrian Constitution and why the division of power was the main reason for which the Court was vested with the power to invalidate laws, see Ulrich Wagrandl, A Constitution Without Qualities? Three Narratives About Austrian Constitutional Law, in European Constitutionalism the Other Way Round 266, 277–80 (Jan Komárek, Birgit Aasa, Marina Bán, & Michał Krajewski eds., 2026).
[24] Walter Berka, Verfassungsrecht: Grundzüge des österreichischen Verfassungs-rechts für das juristische studium [Constitutional Law: Fundamentals of Austrian Constitutional Law for Law Students] 339 (Verlag Österreich, 8th ed. 2021).
[25]See Christoph GrabenWarter, Constitutional Law, in Introduction to the Law of Austria 1, 12 (Christoph GrabenWarter & Martin Schauer eds., 2015).
[26] Verfassungsgerichtshof [VfGH] [Constitutional Court], Oct. 11, 2001, G12/00 ua, https://www.ris.bka.gv.at/Dokumente/Vfgh/JFR_09988989_00G00012_01/JFR_09988989_
00G00012_01.html [https://perma.cc/2BKS-5TAU] (Austria).
[27]See Christoph Bezemek, A Kelsenian Model of Constitutional Adjudication, 67 ZÖR 115, 118 (2012).
[28] Ronald Faber, The Austrian Constitutional Court – An Overview, 2 Vienna Online J. on Int’l Const. L. 49, 50 (2008).
[29] Bezemek, supra note 27, at 119–20.
[30] Individuals may also request the review of a norm by means of a so-called “individual application”. This individual request for constitutional review was introduced in 1975, following the German example. As the Court has established in its case law, a person may contest the legality of a norm if it affects them and violated their rights if it is unlawful. The norm must thus actually interfere with the person’s rights and not only de facto affect their interests, see Bezemek, supra note 27, at 126–27.
[31] Faber, supra note 28, at 50.
[32] GrabenWarter, supra note 8, at 35.
[33] For background, particularly regarding historical context, see generally Öhlinger, supra note 19, at 209–13.
[34] “Members” is the official title for individuals serving on the Austrian Constitutional Court.
[35] The Austrian Federal Council is known natively as the “Bundesrat.”
[36] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 2 (Austria); see also Bezemek, supra note 27, at 118.
[37] Holoubek & Wagrandl, supra note 5, at 261.
[38] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 144, ¶ 1 (Austria).
[39]Id. at art. 138, ¶ 1–2.
[40] A full overview of the Court’s areas of jurisdiction can be found at Bezemek, supra note 27, at 120–21.
[41] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 141, ¶ 1 (Austria).
[42]See id. at art. 142, ¶ 1.
[43]Id. at art. 137.
[44] Bezemek, supra note 27, at 119.
[45] Verfassungsgerichtshof Österreich [VfGH] [Constitutional Court], Activity Report 2024 7 (2024) (Austria) [hereinafter VfGH, Activity Report]; Verfassungsgerichtshof Österreich [VfGH] [Constitutional Court], Official Case Data, https://www.vfgh.gv.at/AktenanfallVfGH.csv [https://
perma.cc/L6P7-XAAC] (last visited Feb. 9, 2026) (Austria) [hereinafter VfGH, Case Data].
[46] VfGH, Case Data, supra note 45.
[47] VfGH, Activity Report, supra note 45, at 6.
[48] Gamper & Palermo, supra note 9, at 67.
[49]Id.
[50] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 1 (Austria); for a detailed analysis and background discussion regarding the number of Members of the Court, see generally Holoubek & Wagrandl, supra note 5, at 262–66.
[51] Herbert Hausmaninger, The Austrian Legal System 140 (4th ed. 2011) (the Constitutional Court of Italy has fifteen members, the German has sixteen (who are, however working in a “twin court” of two permanent senates of eight members each), the Portuguese court has thirteen, the Belgian and the Spanish courts have twelve members each. The French Conseil constitutionnel has nine members, such as the U.S. Supreme Court).
[52] VfGH, Activity Report, supra note 45, at 8, 17.
[53] Holoubek & Wagrandl, supra note 5, at 270.
[54]Id.
[55] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 3 (Austria).
[56] “The president, vice-president, six other members and three substitute members [of the Court] are appointed by the Federal President upon the proposal of the federal government; these members and substitute members must be selected from among judges, administrative civil servants and professors holding a chair in law at a university” Id. art. 134 ¶ 2.
[57] GrabenWarter, supra note 8, at 38.
[58] In Italy, Romania, and Slovakia, for example, a monopoly of jurists has been established as well. In France, however, no personal or professional qualifications are required to be a member of the Conseil constitutionnel (which should be noted is merely a court-like body and not a constitutional court in the classical sense). Bernd Wieser, Vergleichendes Verfassungsrecht [Comparative Constitutional Law] 353–54 (Verlag Österreich, 3d ed. 2024).
[59]See Members of the Constitutional Court, VfGH, https://www.vfgh.gv.at/verfassungsgerichtshof/
verfassungsrichter/members.en.html [https://perma.cc/U2FF-C2RL] (last visited Apr. 5, 2026) (listing Members of the Court, some of which are attorneys).
[60]Id.
[61] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 2 (Austria).
[62]Id.
[63]Id.
[64]Id.
[65] Gamper & Palermo, supra note 9, at68.
[66]Id.
[67] GrabenWarter, supra note 8, at 38.
[68] Gamper & Palermo, supra note 9, at 68.
[69] GrabenWarter, supra note 8, at 38.
[70]Id. at 38–39.
[71] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 4 (Austria).
[72]Id. at ¶ 5.
[73]See generally Theo Öhlinger, Der Fall Brandstetter und der Österreichische Verfassungsgerichtshof, Verfassungsblog (June 11, 2021), https://verfassungsblog.de/der-fall-brandstetter-und-der-osterreichische-verfassungsgerichtshof [https://perma.cc/8TSV-Q55M].
[74] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 5 (Austria).
[75] Bezemek, supra note 27, at 119.
[76] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 2 (Austria).
[77] Bezemek, supra note 27, at 119.
[78] GrabenWarter, supra note 8, at 39.
[79] Bezemek, supra note 27, at 119.
[80]Id.
[81] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 6 (Austria).
[82] Verfassungsgerichtshof Österreich [VfGH] [Constitutional Court], January 2019: Precursor of Today’s Constitutional Court Established 100 Years Ago, https://www.vfgh.gv.at/medien/
100_Jahre_deutschoesterreichischer_Verfassungsgericht.en.php [https://perma.cc/727Q-MBPG] (last visited July 11, 2026) (Austria).
[83]Id.; Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 3 (Austria), version Bundesgesetzblatt [BGBl] No. 1/1920.
[84] On other aspects of the discussion on “depoliticizing” the Court, see Öhlinger, supra note 19, at 214–15.
[85] The initial intention was to align the retirement age of the Members of the Constitutional Court with that applicable to ordinary judges, who retire at sixty-five. In the course of the parliamentary debates, however, the age limit was ultimately set at seventy rather than sixty-five, in order to align it with the retirement age then applicable to university professors, who were likewise required to retire at seventy. See Stefan Leo Frank, Artikel 147 B-VG [Article 147 of the Federal Constitutional Act], in Rill-Schäffer-Kommentar Bundesverfassungsrecht [Rill-Schäffer Commentary on Federal Constitutional Law], para. 41 (Benjamin Kneihs & Georg Lienbacher eds., 17th ed. 2016).
[86]See id.
[87] Wieser, supra note 58, at 352.
[88]Mitglieder (Tabelle: 1919 bis heute) [Members (Table: 1919 to Present)], Verfassungsgerichts-hof, https://www.vfgh.gv.at/verfassungsgerichtshof/verfassungsrichter/mitglieder_tabelle.de.html [https://perma.cc/4SMR-EHER] (last visited March 19, 2026).
[89] This statutory retirement age applies, as a general rule, across all professions; the retirement age for university professors was also lowered in 1988. See Frank, supra note 85.
[90]See id.
[91] Convention for the Protection of Human Rights and Fundamental Freedoms art. 23, ¶ 6, Nov. 4, 1950, 213 U.N.T.S. 221, as amended by Protocol No. 11, May 11, 1994, S.E.T. No. 155.
[92]See Convention for the Protection of Human Rights and Fundamental Freedoms art. 23, ¶ 1, Nov. 4, 1950, 213 U.N.T.S. 221, as amended by Protocol No. 15, June 24, 2013, C.E.T.S. No. 213.
[93] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 87, ¶ 1, art. 147, ¶ 6 (Austria).
[94] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundes-gesetzblatt [BGBl] No. 85/1953, as amended, BGBl No. 92/2014, § 12 ¶ 1, https://www.
ris.bka.gv.at/Dokumente/Bundesnormen/NOR40166286/NOR40166286.pdf [https://perma.cc/
CR6T-772S] (Austria).
[95]Id. at§ 12 ¶ 2.
[96] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 7 (Austria).
[97] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] BUNDESGESETZBLATT [BGBl] No. 85/1953, as amended, BGBl I No. 50/2025, § 10 ¶ 1, https://ris.bka.gv.at/Dokumente/Bundesnormen/NOR40270776/NOR40270776.pdf [https:
//perma.cc/M6W7-FEB7] (Austria).
[98] GrabenWarter, supra note 8, at39.
[99] Hausmaninger, supra note 51, at 133.
[100] Holoubek & Wagrandl, supra note 5, at 267.
[101]Id.
[102]Id.
[103] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 16/2020, § 7 ¶ 1, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40221570/NOR40221570.pdf [https://perma.cc/8WDA-KALY] (Austria).
[104] This is mostly the case in deliberations on matters of law where the legal issue has already been sufficiently clarified by the Constitutional Court’s prior case law.
[105] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 16/2020, § 7 ¶ 2, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40221570/NOR40221570.pdf [https://perma.cc/8WDA-KALY] (Austria).
[106] Holoubek & Wagrandl, supra note 5, at 270; Faber, supra note 28, at 51.
[107]See Theo Öhlinger & Harald Eberhard, Verfassungsrecht [Constitutional Law] 514.
[108] Verfassungsgerichtshof [VfGH] [Constitutional Court], Oct. 2, 2021, B762/98, https://www.
ris.bka.gv.at/Dokumente/Vfgh/JFT_09978998_98B00762_00/JFT_09978998_98B00762_00.pdf [https://perma.cc/3LMZ-JQXU] (Austria).
[109] Holoubek & Wagrandl, supra note 5, at 267.
[110]See Hausmaninger, supra note 51, at 141.
[111] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 50/2025, § 2, https://
www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40270772/NOR40270772.pdf [https://
perma.cc/Y7YH-6J5E] (Austria).
[112] The Permanent Reporters can be, and usually are, reappointed. The Court’s Bench and its Judicial Activity, Verfassungsgerichtshof, https://www.vfgh.gv.at/verfassungsgerichtshof/
organisation/the_courts_bench.en.html [https://perma.cc/T37G-AF4M] (last visited on Oct. 7, 2025).
[113] Each Permanent Reporter is entitled to three law clerks; Members of the Court who do not have the status of a Permanent Reporter are not entitled to law clerks, see id.
[114]Id.
[115] Only the President of the Court and the newest Member to the Court, who has not yet been elected as Permanent Reporter, do not currently hold the position of a Permanent Reporter. Seeid.
[116] Holoubek & Wagrandl, supra note 5, at 269.
[117]Id.
[118] Hausmaninger, supra note 51, at 141.
[119] This is because any Member of the Court may request a matter to be dealt with in the regular plenary; Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 16/2020, § 7 ¶ 2, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40221570/NOR40221570.pdf [https://perma.cc/8WDA-KALY] (Austria).
[120] Holoubek & Wagrandl, supra note 5, at 269.
[121] GrabenWarter, supra note 8, at 42.
[122]Id.
[123] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 92/2014, § 31, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40166291/NOR40166291.pdf [https://perma.cc/5VFG-LBVL] (Austria).
[124]Id.
[125]Id.
[126] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 24/2017, § 19 ¶ 3, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40189027/NOR40189027.pdf [https://perma.cc/6LW2-23RQ] (Austria).
[127] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 33/2013, § 30 ¶ 1, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40147816/NOR40147816.pdf [https://perma.cc/XA5X-NTWB] (Austria); Faber, supra note 28, at 49.
[128] Faber, supra note 28, at 49.
[129]About the Court, Sup. Ct. U.S., https://www.supremecourt.gov/about/about.aspx [https://perma.cc/SMY2-PNKE] (last visited Apr. 6, 2026).
[130] U.S. Const. art. III, § 1.
[131]The History of the Supreme Court of the United States, U.S. Senate Comm. on the Judiciary, https://www.judiciary.senate.gov/nominations/supreme-court/history [https://
perma.cc/JCN6-4UWJ] (last visited Apr. 5, 2026).
[132]Id.
[133] Richard L. Wilson, Judicial Review and the Supreme Court, EBSCO (2023), https://www.ebsco.com/research-starters/law/judicial-review-and-supreme-court [https://perma.cc/3Q2Y-3Z2Y].
[134] Marbury v. Madison, 5 U.S. 137, 177–80 (1803).
[135] Julie Silverbrook, Marbury v. Madison, Bill Rts. Inst., https://billofrightsinstitute.org/
essays/marbury-v-madison [https://perma.cc/DSG3-CSQH] (last visited Apr. 5, 2026).
[136] P. Allan Dionisopoulos & Paul Peterson, Rediscovering the American Origins of Judicial Review: A Rebuttal to the Views Stated by Currie and Other Schools, 18 J. Marshall L. Rev. 49, 74 (1984).
[137] Wilson, supra note 133.
[138] U.S. Const. art. VI.
[139] Alvin B. Rubin, Judicial Review in the United States, 40 La. L. Rev. 67, 71 (1979).
[140] Samantha Lalisan, Classifying Systems of Constitutional Review: A Context-Specific Analysis, 5 Ind. J. Const. Design, Apr. 13, 2020 at 1, 4.
[141]Id.
[142] Rubin, supra note 139, at 70.
[143]Comparing Federal & State Courts, Admin. Off. U.S. Cts., https://www.uscourts.gov/
about-federal-courts/court-role-and-structure/comparing-federal-state-courts [https://perma.cc/
WL8Y-PMN3] (last visited Nov. 29, 2025).
[144]Id.
[145]About the Supreme Court, Admin. Off. U.S. Cts., https://www.uscourts.gov/about-federal-
courts/educational-resources/about-educational-outreach/activity-resources/about [https://perma.
cc/DF3M-48MN] (last visited Nov. 29, 2025).
[146]Id.
[147]Co-Equal Leader: The Role of the Chief Justice of the United States, Sup. Ct. Hist. Soc’y, https://supremecourthistory.org/supreme-court-civics-resources/role-of-chief-justice-of-the-united-states [https://perma.cc/UKY4-JVW2] (last visited Nov. 29, 2025).
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Advancing Intelligence and Global Society: International Law’s Role in Governing the Advance of Artificial Intelligence
Download a copy of this Note:
Lesley Nash[I]
Introduction
Advancing technology changes the fabric of global society, from electricity to the rise of social media, yet law has always struggled to keep pace with such technological advances,[2] and this problem has accelerated with the increased pace of technological change in the twentieth and twenty-first centuries.[3] Although modern society is faced with a multitude of issues springing from new technologies, law and governance structures have lagged[4] while the technologies themselves have advanced.[5] This discrepancy between technology and law is particularly glaring in the artificial intelligence (“AI”) field. Though the solution to creating “true” artificial general intelligence is still elusive,[6] “weak” forms of the technology are altering the fabric of society, from social media[7] to the orchestration of war.[8] These technological advances remake everyday existence, yet global regulatory functions are not sufficiently robust to oversee these changes.
The fact that international law has not yet exhibited meaningful regulatory control over artificial intelligence technology does not mean that itcannot. International law offers a structure of governance over issues that are too broad for unilateral state regulation, or that implicate international interests.[9] Although international law has often been denigrated as weak,[10] it has great potential to offer solutions for global problems that are too large for states to tackle alone. This note seeks to unveil the benefits of using international law to approach the problems and potential of AI as well as suggest a possible method of doing so that can increase regulation and aid in the development and advancement of safe AI technology.
Part I will provide a succinct overview of the current state of artificial intelligence, including the various types of autonomous states of technologies. Section A will include a discussion of the definitions of relevant technologies as well as their modern uses. Section B will touch briefly on several examples of the legal and regulatory issues that have arisen from this technological paradigm. Section A of Part II will discuss the current state of international legal and regulatory structures, while Section B will consider how international law might provide regulation and oversight of this advancing technological sector. Section C of Part II will examine several national and international policies regulating artificial intelligence and what lessons can be drawn from existing structures. Section A of Part III will then draw from institutions and structures offered in Part II, Section B, as well as best practices considered in Section C. Here, I will argue that international law offers the best path forward to functional oversight, regulation, and promotion of advancing AI technologies, and will propose a framework for such an international regulatory structure. Section B of Part III will briefly answer questions related to why international law is not already in use. Finally, Part IV will conclude with a few remarks about both the potential and danger inherent in advancing AI technology and reiterate the call for international regulation and oversight.
I. Artificial Intelligence in the Modern World
A. Understanding Artificial Intelligence: Definitions and Current State of Technology
AI is ubiquitous in popular culture,[11] but the reality of the technology is much different than popular imaginings. AI can be divided into two general categories: “weak” or “specific” AI and “strong” or “general” AI.[12] “Weak” or “specific” AI is an application or system with a specific function, in which the AI often “outperform[s] even the most expert humans.”[13] “Strong” or “general” AI (often referred to as artificial general intelligence, or AGI), on the other hand, is more akin to the AI of pop culture, where the program or system is not merely “specifically” gifted but rather achieves “human-level” performance across a spectrum of individual challenges that would allow the AI to “think.”[14] Though AGI is not yet realized, researchers have made progress on several fronts related to general intelligence, including visual analysis, object recognition, and behavioral interactions.[15] Specific intelligences, on the other hand, are common, operating as systems that are designed to follow a “special-purpose algorithm,” which may render the program an expert search engine[16] or chess player,[17] but incapable of harnessing human ‘common sense.’
A discussion of AI necessitates one of automation. Paul Scharre notes three degrees of autonomy that are helpful when discussing AI.[18] First, semiautonomous operations are those in which “the machine performs a task and then waits for a human user to take an action before continuing;”[19] or “human in the loop” processes.[20] Second, there are supervised autonomous operations in which, once in operation, “the machine can sense, decide, and act on its own, but a human observer can . . . intervene;” or “human on the loop” processes.[21] Finally, there are fully autonomous operations, in which “systems sense, decide, and act entirely without human intervention;” or “human out of the loop” processes.[22] Programs often move among these types of processes when completing a task and they can be conceived of as a continuum: as programs grow more sophisticated, they require less human intervention and oversight to complete tasks.[23]
There is also a difference between automatic, automated, and autonomous intelligence in machines. Automatic programs are simple, highly predictable, and display no decision-making qualities.[24] Automated programs are more complex, rule-based systems that may consider a range of variables before acting.[25] Autonomous programs are sophisticated, goal-oriented, and may be considerably less predictable in their processes.[26] Like process levels, intelligence levels operate on a spectrum, with intelligence growing as a program moves down the continuum from automatic to autonomous.[27] Autonomous programs do not “think;” if their processes are opaque it is because there is not a simple connection between input and output as there is in an automatic program; rather, autonomous, “goal-oriented” systems assimilate a wide variety of input and produce an output through a process that may be unintelligible to human observers.[28]
B. AI Interactions with the Modern World: Influence, Benefits, and Dangers
Understanding AI as more than the humanoid robot or omnipotent mastermind enables a deeper understanding of the ways in which AI technology already interacts with and influences global society, as well as of the reasons why greater regulation and oversight is beneficial. AI operates across a multitude of sectors, influencing fields from social media to the global economy and everything in between. The following examples highlight the benefits and the dangers of continually advancing, and often under- or unregulated artificial intelligence technologies.
The first example occurred on May 6, 2010, when the Dow Jones industrial average careened wildly, losing nearly ten percent of its value in just under fifteen minutes and then, within a half hour, rebounded it its prior level.[29] Following investigations into what became known as the “Flash Crash,” it became clear that the crisis, which was described by traders as “horrifying,”[30] had been set off by a single trading algorithm programmed to sell off a specific type of contract.[31] These contracts were in turn purchased by specifically programmed purchasing algorithms; the competing algorithms entered into a fast-paced trading race, in which the pace of trade triggered other algorithms to offload their contracts as well, interpreting the fast pace of trading as high liquidity.[32] Although stability was soon restored, at the peak of the crisis, “a trillion dollars had been wiped off the market” and investors around the world were shaken.[33]
The Flash Crash was not the result of a rogue algorithm or of a weak AI breaking away from programming. It was an example of a weak AI following its programming to the letter in spite of the catastrophic effects of doing so. The Flash Crash was caused by human programmers’ failure to understand the effects of their algorithm following its directive to its logical conclusion.[34] While the use of algorithmic programming granted benefits in the form of higher trade volume, the potential danger of unforeseen programming consequences clearly played out.
Another illustrative example is the infamous case of Stuxnet malware, which was created to compromise the Siemens machines controlling centrifuges in Iran’s Natanz nuclear facility.[35] Though the facility did not suffer catastrophic damage from Stuxnet, the attacks did reduce the lifetime of the centrifuges, as well as undermining confidence in the security of the Iranian facility.[36] In addition to these long-term deleterious effects of the program, Stuxnet also ushered in a new era of cyber warfare, hailed as the world’s “first military grade cyber weapon.”[37]
Stuxnet heralded a sea change in malware; the virus was not contained in the Natanz facility but spread globally, likely transferred by laptops or USB drives infected with the virus.[38] Though Stuxnet was designed to attack a specific make of Siemens controller, its presence on the internet affords hackers and programmers with access to the virus’ blueprints an opportunity to dismantle, alter, and learn from the way Stuxnet operates.[39] Concern over such cyberattacks has only increased since this first major international incident occurred.[40]
These cases point to a sector of technology and innovation that is advancing—or, perhaps, has advanced—past the point of legal and regulatory control.[41] This note offers these instances as examples of just a few of the diverse situations in which advancing AI and automation technology would benefit from a system of oversight and regulation.
II. International Law: Promises, Failings, and Potential
A. Why International Law?
The rise and increased visibility of the modern international legal system developed in the post-World War II and Cold War eras.[42] International law is “the legal order … meant to structure the interaction between entities participating in and shaping international relations.”[43] Some scholars have argued that international law is not “law,” per se[44] given its lack of authority and enforcement structures,[45] but others have noted that “almost all nations observe almost all principles of international law … almost all of the time.”[46] International law can help preserve peace and security, manage interstate social and economic disputes, and protect the interests of the international community as a whole.[47]
AI is a problem—like the global arms race or climate change—that implicates all of global society.[48] Whether operating in financial markets, conflict situations, or social media and data-gathering, advancing AI crosses and will continue to cross national boundaries; as Erdélyi and Goldsmith suggest, purely national responses to this rising challenge may conflict and create more problems than they solve.[49] Furthermore, isolated national or corporate attempts to solve the emerging research and regulatory problems created by AI may be hasty, ignoring investments in safety to be first to reach a benchmark in machine intelligence.[50] Advancing AI creates an opportunity for international law to step into a gap that national law is not sufficient to fill.
The problem arises from the fact that international law is not law in the traditional sense of national law in which the sovereign creates the system of laws by which its citizens abide.[51] In the international legal systems, the states engaging in the system are themselves sovereign.[52] The pertinent questions then become: In what circumstances do states comply with international law and international obligations, and how can this general compliance be used to create an international structure of governance and oversight for advancing AI technology
B. Under What Circumstance Do States Adhere to International Law?
Academics and international law practitioners have long questioned why states seem to mostly follow international law. This law, which is composed not only of the formal treaties between states but also of more the general principles of customary international law,[53] has been able to function more or less effectively for centuries, despite its lack of total enforcement power over sovereign states. Though the debates behind why states recognize international law are intense and ongoing,[54] of more particular interest to this examination are the following questions: Under what circumstances do states follow international law, and how can this knowledge be applied to the creation of an international governance structure for advancing AI?
Despite arguments that states are not obligated to follow international law,[55] there are more instances of states complying with international laws than not.[56] The commonality in many of these instances may be, rather than some sense of morality or complicated philosophical principle, the less benign and more realist idea of state self-interest.[57] States, though they regularly come together to work toward some common purpose, are individual actors that must shape their own policy considerations towards international issues.[58] The goal for international law is to provide regimes that states can follow that achieve international legal goals while also providing an appealing choice to state self-interest. Such a choice to follow international law can be seen in the disarmament treaties and in international cooperation on nuclear technology that began in the 1950s, and many of these arrangements continue to have a high level of state adherence today.[59]
As previously noted, international law is most useful in circumstances in which one state alone is not capable of managing a problem, or when the interests of the international community as a whole are implicated.[60] Although adherence is not perfect, existential world crises have seen a majority of involved states come to the table and negotiate an international solution through the auspices of international law.[61] Where advancing AI technology does not neatly align with existing international norms, it is necessary to create new structures of governance;[62] which, like those governing arms proliferation, nuclear weapons, and climate change, advance an international policy goal and offer states benefits they would not be able to gain on their own. Jana von Stein notes that this type of mechanism, combining “the proverbial carrots and sticks; technical and financial assistance; [and] tying good behavior to a particular identity” can be quite effective in holding states to compliance with international law and institutions.[63] This research encourages a self-interested view of state compliance, one in which any new international law regime will need to offer states an incentive to comply with its norms.[64]
Examples from other crises clearly show that the mere existence of an existential threat to international society is not necessarily enough to compel full compliance with international law and norms.[65] It is therefore necessary to make compliance with any international regulatory scheme more attractive to states. Increasing the benefits of compliance can be done in two parallel ways. First, create a system where compliance itself is valuable for states’ reputations.[66] Where states are seen as upholding their international obligations and complying with international laws and norms, other states may be more willing to enter into future agreements, grant more generous concessions in future negotiations, or cooperate on economic and regulatory projects.[67]
Second, benefits to a state’s self-interest arise when compliance with international law grants the state some type of tangible gain. For example, although membership in the World Trade Organization (WTO) requires some concessions, member states are also able to access preferential trading with partners.[68] Creating a regulatory system that engenders state adherence around AI policy must keep three goals in mind: (1) provide a solution to a problem implicating the interests of the international community; (2) create a structure in which adherence to international norms creates a virtuous compliance cycle; and (3) incentivize states to comply with the governance structure’s policies through tangible gains given to member states.
C. Regulatory Efforts, Recommendations, and Their Messages
Despite the lack of an overarching regulatory structure, there have been various state, multi-national, and non-governmental attempts to introduce coherence and regulatory oversight to AI research and use. NGOs, expert agencies, and even the United Nations have urged greater oversight of AI advances, while several states have also released plans for the advancement of AI technology. Multiple NGOs and other non-state actors have spoken out in favor of increasing regulation and oversight of AI research and use. Some include calls for increased regulation, while others offer paths forward or designs to emulate.[69] These are not merely specialist organizations, but rather some of the most well-known and integrated NGOs: in 2015, the United Nations Interregional Crime and Justice Research Institute (UNICRI) launched its Centre for Artificial Intelligence and Robotics, which was created to “educate and inform stakeholders . . . [and] progress discussion on robotics and artificial intelligence governance.”[70]
Law and AI experts have called for international regulation and oversight of AI technology and use. One highly relevant proposal is creation of a new international organization to encourage policy discussion and eventual regulation of AI-related matters, which, though beginning as a voluntary advising body, could gain enforcement and oversight powers.[71] One such body, the Center for the Governance of AI, is active at the international level, speaking to non-governmental research groups as well as national governments about the possible dangers and benefits of AI, as well as of policy paths forward to minimize the risks and establish a structure of development and governance for AI technology.[72]
Much has also been proposed regarding the regulation of autonomous weapons; sensible, given their immense potential harm the increasing use of semi-autonomous[73] and autonomous weapons[74] in the field. In 2012, the Campaign to Stop Killer Robots was founded.[75] This campaign, organized to stop the use of fully autonomous lethal weapons and maintain human control over the use of force, is supported by nearly 120 national, regional, and international NGOs.[76] Others have called for a more “vibrant, measured, and mature discussion of the relevant legal issues,”[77]arguing that the law of armed conflict will be shaped by the use of such autonomous weapons[78] and that a ban of such systems would ignore the military practicalities and political complexities that are already tied into states developing autonomous weapons systems.[79]
Several national and supranational actors have also made steps forward in AI regulation and oversight. In June 2018, the European Union (“EU”) named 52 experts to its High Level Expert Group on Artificial Intelligence, which aims to produce policy recommendations on social, political, economic, and ethical issues related to AI, as well as balance economic competitiveness concerns tied to transparency, data-protection, and fairness.[80] In December 2018, the group published its draft AI Ethics Guidelines, which aims to “maximize the benefits of AI while minimising its risks” by “ensuring an ‘ethical purpose’ . . . and [being] technically robust.”[81]
Over twenty-five states have announced their AI strategies or have published plans for future strategies, including the US, Russia, China, and India.[82] Many plans focus on maintaining a competitive edge in the emerging AI market, although several also consider the ethical and safety elements of advancing AI.[83] One strategy notable in its attention to safe progress is the US Department of Defense’s (DoD) attitude towards the development of autonomous weapons systems, which might be extrapolated to encompass advanced AI research.[84]
The DoD’s Directive 3000.09 (“Autonomy in Weapons Systems”) creates three classes of weapons systems that are given a “green light” for development and use.[85] For proposed systems that would use autonomy or intelligence outside of these categories, the system issues a “yellow light,” requiring review before any further development of the technology, and then a second review before field use of the system.[86] Although this policy is created specifically for autonomous and intelligent weapons systems, its stated goal of “[minimizing] the probability and consequences of failures in autonomous [systems]”[87] is one that can easily be transferred to AI, creating a system of checks and review that would allow greater investment in safety in and control over the advancement of AI.[88]
Although none of these proposals are truly international in scope, many of them offer strong elements that could be incorporated into an international regulatory regime, including the American policy discussed above,[89] or the Centre for the Governance of AI’s proposed research and development guidelines.[90] Drawing from best practices of states and NGOs would be beneficial to the proposed regulatory body, and would allow it to begin with a strong foundation.
III. Global Governance of AI: Oversight, Regulation, and Promotion
A. The Regulatory Promise and Potential of International Law
International law has most relevance where national law is not sufficient to protect the interests of global society; the advancement of AI presents an opportunity for greater robustness of international regulatory structures.[91] The growth of AI technology calls for a response from international society. International law and institutions, calling upon both states’ tendencies to comply with international law when doing so is seen as virtuous[92] and upon states’ individual self-interest, may be able to create a regulatory regime that is attractive enough to compel adherence from a majority of state players.[93] Such a regime would not seek to halt research on and development of AI, but to pursue such research and development safely and intentionally.[94]
The most traditional method of international cooperation is, as recommended in multiple other publications,[95] the creation of an international treaty. This proposal offers a more incentivized approach: the creation of an international body of collaborating scientists, researchers, and experts in the field— both civilian and governmental— whose research and collaborative efforts are available only to parties to the treaty. A similar body has been used in response to a broad range of “global catastrophic risks” or “existential risks,”[96] proposing a regulatory body controlled by a group of experts to govern member states of previously created treaties.[97] This body of experts should include experts from civil society as well as government representatives, to promote transparency in regulation and oversight.[98] Leveraging the potential international pitfalls of unregulated AI, the treaty body could create a regime in which a state’s refusal to sign and ratify the new AI treaty and become part of the regulatory institution is seen as damaging to its reputation.[99] Encouraging consideration of the “global catastrophic risks” that might occur should state refuse to comply could also be a motivator.
The combination of these recommendations is the creation of a new international treaty body, overseen by the United Nations (possibly drawing from UNICRI, which already has subject-matter expertise on AI)[100] paired with an expert body or advisory panel serving the members of the new treaty. While the proposed treaty would provide general guidelines for member states on research and development of advancing AI, the expert body could provide case-by-case recommendations on new research and controversial development proposals. The body could also develop best practices and contribute to important advances through collaborative research.[101] Ideally, the panel would also represent the cutting edge of AI research and development, with ideas shared freely among the body’s members.
While states may be less immediately open to joining, many AI experts have already expressed concern about the direction and speed of research, calling for guidance and even delay of certain strands of AI research as well as for more focus on developing AI safely and ethically[102] and would likely be open to joining a body of this sort. One way to make this body more attractive is to encourage the membership and active participation of expert groups such as the American Association for AI and the Machine Intelligence Research Institute (“MIRI”)[103] and individual experts such as Max Tegmark[104] and Nick Bostrom,[105] all of whom have expressed concerns.[106] Participation by these experts in the proposed panel could further incentivize states to join, in order to gain access to their research and collaborative technological development.
States are more likely to adhere to international law when doing so promotes some international interest and offers incentives to states’ self-interest. By offering an answer to the international challenges posed by the expansion of AI across all sectors, including financial, social, and military, the proposed treaty and body of experts would protect the interests of the international community. Further, by providing access to an international, collaborative body of experts that not only provides best practices recommendations and oversights but also to shared information, pooled resources, and joint research, the recommended treaty would offer states and other organizations tangible incentives to both join and adhere to the proposed convention.
A treaty and expert regulatory body could also help control AI advances in the future. While this discussion has focused mainly on weak AI, autonomy, and the possibility of creating AGI in the near to middle-term future, many experts are more concerned about the advances that might follow; namely, superintelligence,[107] which is “any intellect that greatly exceeds the cognitive performance of humans in virtually all domains of interest.”[108] Creating a regulatory body in the present will ensure there are safeguards in place in the event that AI technology reaches such heights, possibly preventing the disastrous consequences that might result.[109] These technological advances have not yet arrived, but they are on the horizon,[110] and establishing an international oversight body early on could prevent more wicked challenges down the road.
B. If International Law Is the Answer, Why Is It Not Currently in Use?
If the potential gains from the international regulation and cooperation on advancing AI are so immense, why hasn’t an international solution yet been accepted? There are two arguments, the first of which is principled and second of which is more pragmatic. First, international law lacks the capacity to properly regulate and oversee a field as rapidly advancing as AI.[111] Second, many powerful states are simply disinterested in international regulation and oversight of advancing AI technology.[112]
First, some scholars argue that international law cannot create binding legal requirements.[113] Without an overarching authority or enforcement mechanism, international law would lack the ability to enforce any new AI regime it attempted to impose, and thus would not be the preferred method of regulation. This argument can be answered by considering that international law, though lacking traditional enforcement power, does have other means, such as international interest, incentives to states, and reputational value to encourage compliance.[114]
Second, international regulation might not be in the best interest of all states. AI is a “dual-use” technology,[115] and though few are opposed to the advancement of peaceful uses of AI,[116] there has been opposition to advancing military uses.[117] Many states, however, have already invested heavily in AI’s military potential[118] and prefer a regime governed by national regulation. This “race dynamic,” where actors refuse to cooperate out of fear that they will not achieve a new technology first,[119] emerges in recent research on public feelings about AI: in a January 2019 poll, more American respondents answered that they believed advancing AI could do more harm than good, yet there was uncertainty as to who, if anyone, should control that advancement.[120] There is a related concern that if other states are developing unsavory advances for AI, your state should as well,[121] regardless of any regulatory structure.[122]
This second set of arguments, however, merely repeats several underlying reasons for regulating AI in the first place, and can be answered by the promise inherent in an international regulatory structure that, through a series of incentives and reputational elements,[123] can gain a level of adherence high enough to undermine bad actors. Despite its flaws, international law still offers the best opportunity for true oversight and guidance of advancing AI.
IV. Conclusion
At the conclusion of his book Superintelligence, Nick Bostrom writes:
Before the prospect of an intelligence explosion, we humans are like small children playing with a bomb. Such is the mismatch between the power of our plaything and the immaturity of our conduct… A sensible thing to do would be to put it down gently, quickly back out of the room, and contact the nearest adult. Yet . . . some little idiot is bound to press the ignite button just to see what happens. Nor can we attain safety by running away . . . nor is there a grownup in sight.[124]
Human society has held the nuclear bomb in its hands for well over fifty years,[125] and this new bomb is no different. Although there are dangers, we are equipped to handle them, provided regulatory oversight is imposed now rather than after the ignite button has been pressed. International governance offers an answer to the looming promises and pitfalls of advancing AI. The proposed regime could provide guidance and safety while also promoting a collaborative spirit that could see AI technology advance slightly more swiftly and much more safely.[126] An international body focused on safe development and use of AI would promote international welfare, search out solutions that work best, not first,[127] and ensure that global society benefits from the promise of AI rather than suffers from the dangers.
___________________________________________________
[I] J.D. expected 2020, University of Kentucky College of Law; M.A. 2017, University of Kentucky Patterson School of Diplomacy.
[2] See, e.g., Olmstead v. United States, 277 U.S. 438 (1928), overruled by Katz v. United States, 389 U.S. 347 (1967), and Berger v. New York, 388 U.S. 41 (1967) (holding that warrantless wiretapping by law enforcement did not violate the fourth or fifth amendment); Katz v. United States, 389 U.S. 347 (1967) (tracing the evolution of Fourth Amendment protections against “unreasonable searches and seizures” as they relate to electronic wiretaps), discussed by Nicandro Iannacci, Katz v. United States: The Fourth Amendment adopts to new technology, Nat’l. Const. Ctr. (Dec. 18, 2018), https://constitutioncenter.org/blog/katz-v-united-states-the-fourth-amendment-adapts-to-new-technology [https://perma.cc/7VKB-5H3Y].
[3] Vivek Wadhwa, Laws and Ethics Can’t Keep Pace with Technology, MIT Tech. Rev. (Apr. 15, 2014), https://www.technologyreview.com/s/526401/laws-and-ethics-cant-keep-pace-with-technology/ [https://perma.cc/K9Q5-NHRF] (“These regulatory gaps exist because laws have not kept up with advances in technology. The gaps are getting wider as technology advances…”).
[4] Id. (“We haven’t come to grips with what is ethical, let alone what the laws should in be in relation to [such] technologies . . . ”).
[5] Id. (“Today, technology is on an exponential curve… changes of a magnitude that once took centuries now happen in decades, sometimes in years.”).
[6] Margaret A. Boden, Artificial Intelligence: A Very Short Introduction 19 (2018).
[7] John Ellett, New AI-Based Tools Are Transforming Social Media Marketing, Forbes (July 27, 2017, 6:00 AM), https://www.forbes.com/sites/johnellett/2017/07/27/new-ai-based-tools-are-transforming-social-media-marketing/#162c713369a2 [https://perma.cc/43FL-97MH].
[8] See Paul Scharre, Army of None: Autonomous Weapons and the Future of War 45 (2018) (“At least thirty nations currently employ supervised autonomous weapons systems of various types to defend ships, vehicles, and bases from attack.”).
[9] Rüdiger Wolfram, International Law, Max Planck Encyclopedia of Pub. Int’l. L. ¶16 (last updated Nov. 2006), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1424 [https://perma.cc/4ZWN-LLMA].
[10] See, e.g., John Bolton, Is There Really Law in International Affairs, 10 Transnat’l L. & Contemp. Probs. 1, 28–30 (2000).
[11] See, e.g., Michael Hogan & Greg Whitmore, The top 20 artificial intelligence films- in pictures, The Guardian (Jan. 8, 2015, 7:29 AM), https://www.theguardian.com/culture/gallery/2015/jan/08/the-top-20-artificial-intelligence-films-in-pictures [https://perma.cc/E74F-3TH5].
[12] Kathleen Walch, Rethinking Weak vs String AI, Forbes (Oct. 4, 2019, 6:30 AM), https://www.forbes.com/sites/cognitiveworld/2019/10/04/rethinking-weak-vs-strong-ai/#7da76f676da3 [https://perma.cc/B7YL-YCHK].
[13] Boden, supra note 6, at 18.
[14] See id. at 18–19; see Nick Bostrom, Superintelligence: Paths, Dangers, Strategies 16 (2014) (discussing the role of data mining in the global financial market).
[15] Id. at 14–16.
[16] Id. at 16 (noting “the demarcation between artificial intelligence and software in general is not sharp… this brings us back to McCarthy’s dictum that when something works it is no longer called AI”).
[17] Id. at 12–14. Deep Blue, a chess-playing AI, made news in 1997 when it beat Garry Kasparov, the world chess champion. Unlike Gary Kasparov, however, Deep Blue could not carry that intelligence to other areas, a clear example of a narrow or specific AI.
[18] Scharre, supra note 8, at 28.
[19] Id. at 29.
[20] Id.
[21] Id.
[22] Id. at 30.
[23] See id. (describing how a Roomba, for example, might move among different processes during completion of its task).
[24] Id.
[25] Id. at 31.
[26] Id. at 30–31.
[27] Id. at 30.
[28] See id. at 32; James Barrat, Our Final Invention: Artificial Intelligence and the End of the Human Era 113–14 (2013). The varying levels of complexity involved in autonomous systems has advanced in recent decades, with growing bodies of research on artificial neural networks (ANNs) and genetic algorithms, among others. While this Note does not go into depth on any of these processes, a deeper understanding of the technical aspects of AI research is helpful to those interested in more fully understanding the complexities of regulation and oversight. See also Barrat at 74–75; Bostrom, supra note 14, at 10–11; Ray Kurzweil, The Age of Spiritual Machines: When Computers Exceed Human Intelligence 81 (2000).
[29] Graham Bowley, Lone $4.1 Billion Sale Led to ‘Flash Crash’ in May, N.Y. Times (Oct. 1, 2010), https://www.nytimes.com/2010/10/02/business/02flash.html [https://perma.cc/2MJN-22YD].
[30] Scharre, supra note 8, at 199.
[31] Id. at 203.
[32] Bostrom, supra note 14, at 17.
[33] Id.
[34] Id. at 21 (“Smart professionals might give an instruction to a program based on a sensible-seeming and normally sound assumption… this can produce catastrophic results when the program continues to act on the instruction… even in the unanticipated situation where the assumption turns out to be invalid.”).
[35] Fred Kaplan, Dark Territory: The Secret History of Cyber War 203–11 (2016).
[36] Ralph Langner, Stuxnet’s Secret Twin, Foreign Policy (Nov. 19, 2013, 5:26 PM), https://foreignpolicy.com/2013/11/19/stuxnets-secret-twin/ [https://perma.cc/B5Y4-KREF].
[37] Barrat, supra note 28, at 256.
[38] Langner, supra note 36.
[39] Id.
[40] See, e.g., Natasha Turk, The next 9/11 will be a cyberattack, security expert warns, CNBC June 1, 2018, 7:55 AM), https://www.cnbc.com/2018/06/01/the-next-911-will-be-a-cyberattack-security-expert-warns.html [https://perma.cc/7C37-WGSK].
[41] See Ian Kerr and Katie Szilagyi, Asleep at the switch? How killer robots become a force multiplier of military necessity, in Robot Law, 354 (Ryan Calo, A. Froomkin, and Ian Kerr, eds., 2016) (arguing that, by failing to properly regulate, oversee, and guide the advancement of AI tech, in this case autonomous weapons, society essentially allows new technology to “determine its own use.”).
[42] Oscar Schachter, The UN Legal Order: An Overview, The United Nations and Int’l. L. 3 (Christopher Joyner, ed., 1997) available at https://www.jstor.org/stable/2204020.
[43] Wolfrum, supra note 9.
[44] Bolton, supra note 10, at 48 (“International law is not law; it is a series of political and moral arrangements that stand or fall on their own merits, and anything else is simply theology and superstition masquerading as law.”).
[45] See Jana von Stein, Compliance with International Law, Int’l Studies Ass’n and Oxford U. Press (last updated Nov. 2017) http://www.janavonstein.org/uploads/4/6/1/9/46194525/oxford-encyclopedia.pdf [https://perma.cc/L9A5-SLD5].
[46] Louis Henkin, How Nations Behave 47 (2d. ed. 1979). For the discussion herein, see supra Part II Section B, at 6–8.
[47] Id.
[48] See, e.g., Olivia Erdélyi and Judy Goldsmith, Regulating Artificial Intelligence: Proposal for a Global Solution, Association for the Advancement of Artificial Intelligence, 1, 2, 9 (2018), https://www.aies-conference.com/2018/contents/papers/main/AIES_2018_paper_13.pdf [https://perma.cc/N6SG-GWA8].
[49] Id. at 1-2.
[50] Bostrom, supra note 14, at 249. This possibility is particularly concerning in two instances: first, in the case of lethal autonomous weapons; and second, in the case of AGI. Bostrom writes:
Consider a hypothetical AI arms race in which several teams compete to develop superintelligence. Each team decides how much to invest in safety–knowing that resources spent on developing safety precautions are resources not spent on developing the AI… there might be a risk-race to the bottom, driving each team to take only a minimum of precautions. Id. at 247.
[51] Samantha Besson, Sovereignty, Max Planck Encyclopedia of Public International Law (Last updated April 2011), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1472 [https://perma.cc/Z3VW-4NQH].
[52] See, e.g., Shen, infra note 54 (discussing that states often follow international law, although they are not forced to do so, and can regularly choose not to do so).
[53] Wolfrum, supra note 9.
[54] See, e.g., Harld Hongju Koh, Why Do Nations Obey International Laws?, 106 Yale L.J. 2599, 2602–03 (1997) (arguing that international laws create normative structures that are internalized and reproduced in domestic law, which helps create national understanding of sovereignty and a nation’s place in global society, forming a type of virtuous feedback cycle); see generally Jianming Shen, The Basis of International Law: Why Nations Observe, 17 Dickson Int’l L. 287 (1999) (discussing a wide range of theories of observance of international law, including naturalist theories, positivist theories, and other more modern political science theories such as power politics and peaceful coexistence.).
[55] Eric Posner, Do States Have a Moral Obligation To Obey International Law?, 55 Stan. L. Rev. 1901, 1902, 1919 (2003) (arguing that states do not, in fact, have a moral obligation to follow international law, but may have prudential reasons for doing so).
[56] von Stein, supra note 45, at 20 (noting that “various mechanisms… can help to ensure that states keep their international promises much of the time”).
[57] Id. at 1918.
[58] Juliet Kaarbo, Jeffrey S. Lantis, Ryan K. Beasley, and Michael T. Snarr, The Analysis of Foreign Policy in Comparative Perspective, Foreign Policy in Comparative Perspective: Domestic and International Influences on State Behavior, 4 (2nd. ed., Ryan K. Beasley, Juliet Kaarbo, Jeffrey S. Lantis, and Michael T. Snarr, eds. 2013).
[59] John Murphy, Force and Arms, The United Nations and International Law 122–29 (Christopher Joyner, ed., 1997).
[60] See discussion supra II. A, at 6.
[61] One particularly salient example in this case–though comparisons can be overdone–is the creation of the International Autonomic Energy Agency in the wake of the Second World War, the bombing of Nagasaki and Hiroshima, and the understanding of what nuclear technology could do, both in terms of societal benefits and potential threats. The IAEA, founded in 1957, had 171 member states as of February 5, 2019. See International Atomic Energy Agency (IAEA), https://www.iaea.org/about/governance/list-of-member-states [https://perma.cc/PM7U-5HWN] (last visited Oct. 2, 2019); CERN and the Human Genome project also present good examples of international scientific collaboration, though without the immediacy that nuclear technology and now, arguably, AI technology present. See Bostrom, supra note 14, at 253.
[62] Grant Wilson, Minimizing Global Catastrophic and Existential Risks from Emerging Technologies Through International Law, 31 Va. Envtl. L.J. 307, 349–350 (2013).
[63] See von Stein, supra note 45 (including an in-depth discussion of the elements of international normative structures that encourage compliance with international law).
[64] Id.
[65] See, e.g., Michael D. Shear, Trump Will Withdraw U.S. From Paris Climate Agreement, N.Y. Times (June 1, 2017), https://www.nytimes.com/2017/06/01/climate/trump-paris-climate-agreement.html [https://perma.cc/5G67-4M95].
[66] Andrew Guzman, A Compliance-Based Theory of International Law, 90 Calif. L. Rev. 1823, 1880 (2002).
[67] Id. at 1886–87.
[68] World Trade Organization, Principles of the trading system, https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm [https://perma.cc/T2FP-WDJ7] (last visited Jan. 14, 2019).
[69] See, e.g., Boden, supra note 6, at 147–49 (discussing NGO and expert calls for increased oversight).
[70] United Nations Interregional Crime and Justice Research Institute, UNICRI Centre for Artificial Intelligence and Robots, http://www.unicri.it/in_focus/on/UNICRI_Centre_Artificial_Robotics
[https://perma.cc/6JHC-EGM3] (last visited Jan. 13, 2019).
[71] Erdélyi & Goldsmith, supra note 48, at 3.
[72] University of Oxford Future of Humanity Institute, Centre for the Governance of AI, https://www.fhi.ox.ac.uk/GovAI/ [https://perma.cc/MM8G-3V4Y] (last visited Jan. 13, 2019). Although outside the scope of this paper, FHI and the Centre for the Governance of AI have a wealth of research on desired policy outcomes of governance structures, as well as more technical information such as forecasts on future AI capabilities, malicious use, and machine learning advances, which can be accessed at https://www.fhi.ox.ac.uk/publications/ [https://perma.cc/9MEU-SCUB] (last visited Jan. 13, 2019).
[73] See Scharre, supra note 8, at 103 (“As of June 2017, sixteen countries possessed armed drones…”).
[74] See id. at 47–48 (discussing the Israeli Harpy drone, which is fully autonomous, requiring no human approval of its targets. It has been sold to China, India, and Turkey, among others).
[75] Campaign to Stop Killer Robots, About Us, https://www.stopkillerrobots.org/about/ [https://perma.cc/VUD2-YXCM] (last visited Oct. 6, 2019).
[76] Id.
[77] Michael N. Schmitt and Jeffrey S. Thurnher, “Out of the Loop”: Autonomous Weapon Systems and the Law of Armed Conflict, 4 Harv. Nat’l Sec. J. 231, 233 (2013);
[78] Id. at 233–34.
[79] Id. at 280–81.
[80] European Commission, High-Level Expert Group on Artificial Intelligence, https://ec.europa.eu/digital-single-market/en/high-level-expert-group-artificial-intelligence [https://perma.cc/EF5J-6ZMY] (last visited Jan. 13, 2019).
[81] EU High-Level Expert Group on Artificial Intelligence, Draft Ethics Guidelines for Trustworthy AI (Dec. 18, 2018), https://ec.europa.eu/digital-single-market/en/news/draft-ethics-guidelines-trustworthy-ai [https://perma.cc/822H-LR7V].
[82] Tim Dutton, An Overview of National AI Strategies (June 28, 2018), https://medium.com/politics-ai/an-overview-of-national-ai-strategies-2a70ec6edfd [https://perma.cc/YN22-GGSE].
[83] Id.
[84] Scharre, supra note 8, at 89.
[85] Id. These three classes are “semiautonomous weapons, such as homing munitions…defensive supervised autonomous weapons, such as the ship-based Aegis weapon system…and non-lethal, non-kinetic autonomous weapons, such as electronic warfare.”
[86] Id.
[87] Id. at 90.
[88] See Bostrom, supra note 14, at 206.
[89] Scharre, supra note 8, at 89.
[90] See Centre for the Governance of AI, supra note 72.
[91] See, e.g., Wolfram, supra note 9 (considering areas falling under the governance of international law such as the high seas, climate issues, and international economic issues).
[92] See von Stein, supra note 45.
[93] See, e.g., IAEA, supra note 61, and the 170 member states of IAEA.
[94] See Bostrom, supra note 14, at 206.
[95] See, e.g., Erdélyi and Goldsmith, supra note 48; Wilson, supra note 62, at 349–50.
[96] Wilson, supra note 62, at 308–11 (discussing the risks created by nanotechnology, AI, bioengineering, and the Large Hadron Collider).
[97] Id. at 355–56.
[98] Id. at 356–57.
[99] See von Stein, supra note 45, at 7–9 (discussing the role of reputation in creating state compliance).
[100] See UNICRI, supra note 70.
[101] See Bostrom, supra note 14, at 249–50 (discussing the benefits of collaboration, including “the sharing of ideas.”).
[102] Boden, supra note 6, at 147; Ian Semple, Thousands of Leading AI Researchers Sign Pledge Against Killer Robots, The Guardian (July 18, 2018), https://www.theguardian.com/science/2018/jul/18/thousands-of-scientists-pledge-not-to-help-build-killer-ai-robots [https://perma.cc/4PPL-FKFB].
[103] See Boden, supra note 6, at 148–49.
[104] Max Tegmark, Future of Life Institute, https://futureoflife.org/author/max/ [https://perma.cc/3BGT-DJM4] (last visited Mar. 15, 2019).
[105] Nick Bostrom, Nick Bostrom, https://nickbostrom.com/ [https://perma.cc/Y248-ZG5F] (last visited Mar. 16. 2019).
[106] Boden, supra note 6, at 147–48 (noting that there have been multiple expert conferences discussing AI safety as well as a number of open letters condemning use of, for example, autonomous weapons in war).
[107] See, e.g., Bostrom, supra note 14, at 259–60; Barrat, supra note 26, at 152–53; Boden, supra note 6, at 131.
[108] Bostrom, supra note 14, at 22 (internal footnote omitted).
[109] See id., at 95–99.
[110] See id., supra note 14, at 22–29 for an in-depth discussion of expert opinions on when human-intelligence level AI will be achieved.
[111] See, e.g., von Stein, supra note 45, at 21 (noting that not all states follow almost all of their agreements almost all of the time, and offering a discussion of the complex nature of state compliance); see also Wolfram, supra note 9, at 5, 14 (noting there is no enforcement mechanism in international law). Although these authors do not support these arguments, they do make note of them as critiques raised against international law.
[112] George Lucas, Jr., Legal and Ethical Precepts Governing Emerging Military Technologies: Research and Use, 2013 Utah L. Rev. 1271, 1275 (2013) (noting that international “regulatory statutes would prove unacceptable to, and unenforceable against, many of the relevant parties”).
[113] Posner, supra note 55, at 1905.
[114] See Part II Section B, supra page 10–13.
[115] Barrat, supra note 28, at 155.
[116] See, e.g., Bostrom, supra note 14, at 15–16 (discussing several current peaceful uses of AI, including increasing the speed and capacity of internet searches and voice and facial recognition).
[117] See, e.g., Human Rights Watch, supra note 81, at 12 (calling for an end to the use and prevention of future development and use of increasingly automated and autonomous drones in warfare).
[118] See Scharre, supra note 8, at 102–03 (noting the number of states possessing and using armed drones). Consider also the case of Israel, which has developed the fully autonomous Harpy drone and sold this drone to, among others, China, India, and Turkey, creating both a military and financial incentive for Israel to avoid increased regulation of autonomous weapons. See id. at 45–48.
[119] Bostrom, supra note 14, at 246–49.
[120] Karen Hao, Americans want to regulate AI but don’t trust anyone to do it, MIT Tech. Rev. (Jan. 10, 2019), https://www.technologyreview.com/s/612734/americans-want-to-regulate-ai-but-dont-trust-anyone-to-do-it/ [https://perma.cc/ZCX4-PWXZ].
[121] See, e.g., Scharre, supra note 8, at 117–19 (discussing the beginning of what may become an autonomous arms race).
[122] Id. at 330 (“The main rationale for building fully autonomous weapons seems to be the assumption that others might do so”).
[123] See Part III Section A, supra page 11–14.
[124] Bostrom, supra note 14, at 259.
[125] See International Atomic Energy Agency (IAEA), https://www.iaea.org/sites/default/files/16/08/
iaea_safeguards_introductory_leaflet.pdf [https://perma.cc/PLH8-NDBA] (last visited Jan. 13, 2019).
[126] See Bostrom, supra note 14, at 306–07.
[127] Barrat, supra note 28, at 266 (“Like natural selection, we choose solutions that work first, not best.”).