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Soft Law Governance of Artificial Intelligence in Healthcare Soft Law Governance of Artificial Intelligence in Healthcare

Gary E. Marchant · SSRN Electronic Journal · 2026

<p>Artificial intelligence (AI) tools are increasingly being used in medicine, including for drug discovery, healthcare administration, disease diagnosis, and treatment.  Such AI applications show considerable promise for improving healthcare, but also present several legal and ethical issues relating to accuracy, transparency, bias, privacy and the “pacing problem.”  The Food and Drug Administration (FDA) has some innovative steps to regulate health care AI, but there are significant gaps and weaknesses in the agency’s oversight of healthcare AI.  In some cases, the FDA lacks jurisdiction to regulate certain AI applications or concerns, and for other applications and concerns the FDA does have jurisdiction but its current oversight is incomplete.  A number of soft law programs have been launched to try to fill these gaps in FDA oversight.  Nine different AI healthcare soft law programs are reviewed in this Article, including their objectives and mechanisms for governing AI.  These soft law programs have a number of strengths, including greater agility and flexibility than government regulation, the opportunity to involve

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