A Future without Human Driving

• Date: 01 July 2020

A Future without Human Driving

GUY SEIDMAN* AND AVIV GAON**

ABSTRACT

Cities, especially those lacking a well-functioning public transport system,

have long had a love-hate relationship with privately owned cars. On the one

hand, cars allow a massive influx of people into cities from the surrounding

areas. This inflow helps cities maintain their economic vitality and social rele-

vance. On the other hand, there are massive prices to pay. Congested traffic

means a slow commute, which is both unpleasant and wasteful. Furthermore,

car parking is enormously expensive in terms of physical space and financial

cost. Worse still is the cost in life and limb that car accidents cause. Small won-

der that commentators have called for the complete removal of cars from cities

or that many cities have taken up the initiative of banning cars from their cen-

ters. Autonomous Vehicles (AV) hold the promise of a “gentler, kinder” car,

which will allow more individual passengers to get to their desired destinations

faster, more comfortably, and more safely than they do now. We have two goals

in this paper: first, to present the technology in its transition from the drawing

board into mainstream use while outlining current trends in emerging technolo-

gies regulation (AVs included); and second, to suggest that AVs hold particular

promise in the urban context. Here, we look into AV regulation in more detail,

discussing the social impact and legal considerations that should be addressed

as we move forward to the future with (or without) human driving.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504

I. TALKIN’ BOUT A REVOLUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 511

A. Regulating Emerging Technologies . . . . . . . . . . . . . . . . . . . . 511

B. Regulating Autonomous Vehicles. . . . . . . . . . . . . . . . . . . . . . 517

1. Likelihood: Autonomous Vehicles Will Be Regulated . . . 517

* Professor of Law, the Harry Radzyner School of Law, IDC Herzliya, Israel; gseidman@idc.ac.il.

** Lecturer, IDC Herzliya, Israel; agaon@idc.ac.il; Research Fellow, Munk School of Global

Affairs and Public Policy, University of Toronto.

The authors wish to thank the participants of the Sixth Annual International and Comparative Urban

Law Conference in Sydney Australia, especially Nestor Davidson, Cathy Sherry and Amelia Thorpe for

the useful comments and suggestions to early drafts of this paper. The authors also wish to thank Noa

Kazav for the excellent research. We are most grateful to the editorial board of the Georgetown Journal

of Law & Public Policy, especially Megan Cairns, Paul Bettencourt, Jordan Pino, Roya Butler and

Gregory Mill for their insightful comments and excellent editorial review. © 2020, Guy Seidman and

Aviv Gaon.

503

2. In Support of Automated Vehicles . . . . . . . . . . . . . . . . . 522

a. Human Driven Is Simply Bad Policy . . . . . . . . . . 522

b. Reading the Tea Leaves—Human Driven Cars Are

on the Decline . . . . . . . . . . . . . . . . . . . . . . . . . . . 530

3. A Few Words of Caution . . . . . . . . . . . . . . . . . . . . . . . . 532

a. Fear of the Machine . . . . . . . . . . . . . . . . . . . . . . 532

b. The AVs Revolution Is Not Here, Yet . . . . . . . . . . 534

II. GUESSWORK OR FUTUROLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538

III. LESS (HUMAN) DRIVING WILL LEAD TO BETTER LIFE QUALITY . . . . 541

A. The “Easy” Utilitarian Argument for Less Human Driving . . 541

B. Traffic Congestion, Autonomy, Discretion . . . . . . . . . . . . . . . 543

C. The “Easy” Utilitarian Argument for “Better Life Quality” . . 546

IV. REFLECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 549

INTRODUCTION

Car driving has changed little in several generations. Today’s car may be safer

and more comfortable than the passenger cars of our parents and grandparents,

but most salient features remain unchanged: the basic design, the core model of

private ownership and insurance, speed, and even cost.

1

The nearing autonomous

vehicle (AV)

2

revolution carries the promise of the most comprehensive change

to the passenger car in over a century. The precise details, however, are unclear,

prompting commentators to wonder: “Will people overcome their fear of ‘driver-

less’ vehicles?”;

3

More broadly, “Are we headed for an autonomous utopia or

1. The average price of a new car in 2013 ($27,424) was very close to the average price in 1970

($22,929), when adjusted for inflation. See STACY C. DAVIS & ROBERT G. BOUNDY, TRANSPORTATION

ENERGY DATA BOOK 264 (37th ed. 2019), https://info.ornl.gov/sites/publications/Files/Pub116893.pdf

[https://perma.cc/KFU4-5FFE]. On the rise in commute times in the United States, see Joe Pinsker, Yes,

Rush-Hour Traffic Is Getting Worse, THE ATLANTIC (Aug. 26, 2015), https://theatlantic.com/business/

archive/2015/08/rush-hour-traffic-commute/402418/ [https://perma.cc/66NU-A52Y].

2. Autonomous Vehicles (AV) are also known as driverless or self-driving cars—both terms

commonly relating to vehicles that do not need human input to operate. In this paper, we will use the

term Autonomous Vehicles given that it better reflects the issues we highlight.

3. AAA’s annual automated vehicle survey (2018) found that seventy-one percent of people are

afraid to ride in fully self-driving vehicles. Surveys also found that almost two-thirds of airline

passengers would be unlikely to fly in a pilotless plane. Such concerns are likely to slow down the use of

AVs until public confidence builds up, as was the case for the ‘driverless elevator’ and human car

504 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:503

driverless dystopia?”;

4

And even, “What if autonomous cars just never happen?”

5

We have been considering the potential implications of the so-called revolu-

tion for some time, both as scholars of public law, technology, and comparative

law and as longtime drivers licensed in multiple jurisdictions. We are neither

technophiles nor Luddites. We have little knowledge of the technical develop-

ments concerning AVs, but we have no significant objection to their introduction.

We will admit, however, a general dislike for city driving and a wish for the intro-

duction of more efficient transportation options. With this paper, we try to extrap-

olate from past lessons as to the future of human car driving. Our starting point is

the optimistic assumption that, in several years, AVs will become a viable alter-

native transportation model for people who currently own and drive private cars.

6

This paper is presented in four parts. In Part I, we outline current trends of

emerging technologies—venturing into Alvin Toffler territory

7

—in trying to

assess the practical impact of AVs, mainly the expected dramatic decrease in the

human operation of cars. We also discuss some of the challenges and fears related

to AV policy. In Parts II and III, we draw on public law (as well as socioeconomic

and cultural implications) to suggest that a decrease in human car driving would

be a good thing for our society, though it may also prove a less fortunate develop-

ment. Building on the lessons we learned from significant shifts in the past centu-

ries, we offer insights and suggestions for potential regulatory changes in Part IV.

We have taken a small detour to avoid tedious discussions about the levels of

AV developments, AV definitions, and current regulatory initiatives.

8

We choose

drivers. See, e.g., Three in Four Americans Remain Afraid of Fully Self-Driving Vehicles, AAA

NEWSROOM (Mar. 14, 2019), https://newsroom.aaa.com/2019/03/americans-fear-self-driving-cars-

survey/ [https://perma.cc/BQ3Q-BCUQ]; Hannah Boland, Pilotless Planes Could be Flying Soon but

Public Fears Must be Overcome, Says Airbus, THE TELEGRAPH (June 18, 2019) https://www.telegraph.

co.uk/technology/2019/06/18/pilotless-planes-could-flying-soon-overcoming-public-fears-obstacle/

[https://perma.cc/HR23-ZUNF]; Steve Henn, Remembering When Driverless Elevators Drew

Skepticism, (NPR Planet Money Morning Edition broadcast July 31, 2015) https://www.npr.org/

2015/07/31/427990392/remembering-when-driverless-elevators-drew-skepticism [https://perma.cc/

S4ZU-3N2T]; Louis Anslow, Forget Self-Driving Car Anxiety: In the Early Days Human Drivers

were the Fear, TIMELINE (Nov. 3, 2016), https://timeline.com/forget-self-driving-car-anxiety-in-the-

early-days-human-drivers-were-the-fear-55a770262c10 [https://perma.cc/RTX7-4XF6].

4. See Kurt Kohlstedt, Crash Course: Are We Headed for an Autonomous Utopia or Driverless

Dystopia?, 99% INVISIBLE (Apr. 12, 2017), https://99percentinvisible.org/article/crash-course-headed-

autonomous-utopia-driverless-dystopia/ [https://perma.cc/3Z3A-FFLT].

5. See Raphael Orlove, What If Autonomous Cars Just Never Happen?, JALOPNIK (Nov. 28, 2017),

https://jalopnik.com/what-if-autonomous-cars-just-never-happen-1820778692 [https://perma.cc/S7TP-

ZLUE].

6. See Mark Harris, The Future of Driving Is Now a Gold Rush, WIRED (Dec. 21, 2016), https://

www.wired.com/2016/12/the-future-of-driving-is-now-a-gold-rush/?mbid=synd_digg#.plaje1nq6 [https://

perma.cc/CYS9-AGEM].

7. Alvin Toffler is an American writer who made futurism more legitimate and mainstream. See

Alvin Toffler, WIKIPEDIA, https://en.wikipedia.org/wiki/Alvin_Toffler [https://perma.cc/HN86-LAWP].

8. There are important regulatory AV initiatives in the US at both the federal and state level. See e.g.,

U.S. DEPARTMENT OF TRANSPORTATION, AUTOMATED DRIVING SYSTEMS 2.0: A VISION FOR SAFETY

(2017), https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag .pdf.

[https://perma.cc/3D4H-HJ6K]; and the more recent U.S. DEPARTMENT OF TRANSPORTATION, PREPARING

FOR THE FUTURE OF TRANSPORTATION: AUTOMATED VEHICLES 3.0 (2018), https://www.transportation.

2020] A FUTURE WITHOUT HUMAN DRIVING 505