Does Uncertainty Breed Innovation? No, No It Doesn’t.

Indulge ratpag, and meditate on this piece of performance art.

Confused? This is a trailer for a 25-page Brookings Institution report published last week.

First impressions: what is up with that trailer? When did the entire world become the imagination of Zoey Deschenal’s and Michel Gondry’s six-year-old child? And the Brookings Institution?? That’s about as far from cute as you can get.

Second impressions: how does the Brookings Institution get an .edu extension?

Third impressions: The author, John Villasenor, first argues that that the question of liability for crashes involving driverless vehicles can be answered with existing product liability law.

The first argument is rather obvious. When something happens for which there is no existing law, judges will interpret existing laws and relevant case law and come to a conclusion, which itself becomes case law. It’s not as if everything comes to halt. He describes several mechanisms under tort and contract law that allow the consumer to sue the automaker, such as negligence, strict liability, and failure to warn.

Or would you rather watch him explain it? Watch out for the robot.

There are six more of these videos on the site, which means he had to sit there and grossly simplify his report in front of a camera, then have to watch himself later. That’s ratpag’s personal nightmare. We feel bad for the guy.

Then the BI posted the hilariously misleading Google promotional video, because, why not?

Villasenor goes on to argue that not only does it assign liability, but it does so “without delaying consumer access to the many benefits that autonomous vehicles will provide.” This is where the problems begin. Driverless car owners can use any of the product liability law mechanisms to sue the automaker, but this does nothing to protect the automaker from excessive damages awarded by juries. In any crash where the self-driving technology was even partially at fault, who would you rather sue: a driver who made $50,000 last year, or Toyota who made $9 billion? Giving customers more ways to sue an automaker is not going to help bring this technology to market. Villasenor acknowledges this fact, but seems to write it off as something to be solved later:

“In the coming years, autonomous vehicle liability is certain to be a topic of continuing interest in state legislatures, in Congress, in the legal community . . . Whether federal or state liability legislation is needed, and if so, what form it should take, will be a recurring question.”

Yes, this will be a question, and one that he wants to punt to the courts:

 “Subject to a few narrow exceptions, there are good reasons (see principles two and three below) to let the courts address such questions, when and as they arise.”

And what are those good reasons to punt?

“Products liability law has proven to be remarkably adaptive to new technologies.”

Right, because that worked out great for Toyota when they were ordered to pay out $1.2 billion in the unintended acceleration cases. This was in spite of an extensive study by NASA and NHTSA which found no evidence of faulty software in the vehicles. This work was negated by a jury in Oklahoma when Toyota couldn’t conclusively prove that the accelerations didn’t happen. Good luck trying to prove a negative with the vastly more complicated self-driving systems. This is why you’re seeing most of the innovation coming from Google. It’s not because automakers are stupid, it’s because a few crashes can wipe out 10% of your entire earnings that year. Google, as a technology company, has been immune to any kind of tort liability, and has charged ahead on driverless tech. The automakers are aware of the Toyota settlement, and they are understandably cautious.

A possible solution is government protection for automakers, recognizing that although self-driving cars can significantly improve safety, a few crashes can make them financially impossible to sell. The US has done this before for vaccine manufacturers. The Brookings report did not discuss this.

The second reason to punt to the courts?

“Congress should not preempt state tort remedies with respect to autonomous vehicle liability.”

This disagrees with the RAND report that advises the feds to make consistent laws, so that automakers aren’t subject to state-by-state regulations. Villasenor argues that feds can’t make up the right standards, yet somehow the states can. ratpag is not following.

The reason so many companies are incorporated in Delaware is because Delaware has tons of case law covering almost any situation. This provides certainty, and allows companies to manage risk and invest in the future. Some federal guidance on driverless vehicle liability could do the same thing.

We don’t need additional legislation, but don’t say that letting the courts handle driverless vehicle liability at some point in the future will help speed along vehicle deployment. Additional risk—whether real or perceived—holds up progress, especially when taking on that risk doesn’t lead to increased sales.

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This entry was posted in Autonomous Vehicles / Self Driving Cars, Transportation Legislation Station and tagged , , , , , . Bookmark the permalink.

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