AuthorJohnson, Walter G.
  1. INTRODUCTION 322 II. BENEFITS, RISKS, AND REGULATION OF AVS 327 III. ASSESSING OVERHYPE AROUND AV MASS TORTS 333 A. Potential for A V Mass Actions 335 B. Uncertainty and Causation in AVs 340 C. Overhype and Emerging Technologies 343 IV. VALUES AND REGULATORY POLICY IN AN AV ADMINISTRATIVE FUND 344 A. Governance Values 345 B. Risk Regulation and Equity 348 V. CONCLUSION 352 I. Introduction

    After decades of innovation and technological development, autonomous vehicles (AVS) have nearly arrived. (1) These technologies have the potential to reduce motor vehicle collisions, transform mobility, and give rise to new business models, and testing AVS on public roads in the United States has occurred for several years. (2) The U.S. even justified its decision not to join the 2020 Stockholm Declaration on Road Safety, in part, due to its progress in developing AVS. (3) The recent COVID-19 pandemic may see further interest in the technology, as AV developers have raced to position themselves as part of the solution to prevent the spread of infection. (4)

    Despite their potential, organizations such as the World Economic Forum note that various AV governance challenges remain. (5) Choosing how to regulate AVS to strike the proper balance between benefits, risks, and uncertainties will no doubt reflect the social, cultural, political, and economic values of the decisionmakers. (6) Yet, public regulatory agencies will not be the only institutions involved in constructing a regulatory environment for AVS in the United States or beyond. (7)

    Perhaps unsurprisingly, much has been written already about AVS and common law liability over the last decade. (8) Though AVS hold great potential to reduce public health and safety hazards from motor vehicle collisions, they will ultimately continue to be involved in collisions to some degree. (9) Legal scholars have discussed the potential of plaintiffs using civil tort doctrines such as negligence, products liability, and breach of warranty to hold AV developers liable for injuries which result from collisions. (10) Liability analyses have extensively considered how the novel software, hardware, and social perceptions of AVS will modulate civil tort liability. (11)

    Under the expectation of profuse personal injury liability, multiple entities and commentators have recently recommended the federal government consider preempting many state tort law claims against AV developers and install an administrative compensation fund for injured victims. (12) The argument for preemption and a fund maintains that the potential social benefits of AVS are too great to jeopardize by exposure to mass torts. (13) Advocates envision a virtually exclusive fund similar to the National Vaccine Injury Compensation Program, with public administration of a no-fault fund financed by taxing AV developers in return for limited civil tort liability. (14) By restricting predominant tort theories, even if other claims such as misrepresentation or conspiracy were left intact, such a scheme would leave the administrative fund as the primary method of claim resolution for a vast majority of potential claimants. (15)

    Thus far, Congress has declined adopting a scheme of federal preemption for AV tort claims. (16) The proposed, bipartisan SELF DRIVE Act specifically declined to preempt state tort claims, while preempting states in several other arenas. (17) Yet the bill died in the Senate in 2018 and no legislation has since been proposed with a broad cohort of support. (18) Policymakers continue to discuss a federal regulatory regime, but it remains a contentious matter. (19)

    As lawmakers continue to consider the appropriate federal regulatory scheme for AVS, they should approach the question of whether to preempt civil tort claims with caution. (20) AVS have not yet gained market access, though evidence available from authorized road tests and doctrinal constraints on aggregating mass actions suggest liability will not likely overwhelm the budding industry. (21) Moreover, cutting off access to the tort system is a significant and severe step. (22) Multiple democratic values and individual rights fundamental to the civil justice system cannot be easily replicated with an administrative compensation fund, so establishing a fund as a virtually exclusive remedy will require extensive analysis beyond economic cost-benefit evaluations. (23) Further, various parties have vested interests in whether and how federal regulations preempt state tort claims. (24) These can include federal lawmakers and regulators, state actors, business groups, civil society organizations, and individuals with current or potential tort claims. (25) That federal preemption would significantly benefit the interests of established vehicle developers and large technology firms over other stakeholders should provide reason for pause. (26)

    This article will dissect the arguments favoring tort preemption and administrative funds, finding them grounded in speculation and insufficient on normative grounds. Part I will review the technology, risks, and benefits behind AVS as well as the regulatory backdrop for the preemption debate. Considering doctrinal law, Part II will analyze the potential for mass torts to develop against AV developers before Part III explores policy arguments against preemption and compensation in this regulatory space at this time.

  2. Benefits, Risks, and Regulation of AVs

    Despite progress over the last several decades, death and injury from motor vehicle collisions remains a significant public health and safety challenge. (27) The World Health Organization reports 1.35 million fatalities related to traffic incidents occurred in 2015. (28) The global mortality figures for traffic incidents continues to rise, but the rate of growth has recently begun to slow. (29) The U.S. Centers for Disease Control and Prevention (CDC) has determined that motor vehicle crashes resulted in over 3 million injuries in 2017 and constitutes a leading cause of death for individuals under the age of 55. (30) The causes of morbidity and mortality are multifactorial, though the U.S. National Highway Traffic Safety Administration (NHTSA) estimates human error plays a role in over 90% of motor vehicle collisions. (31)

    Accordingly, AVS could reduce health hazards by removing human error from the roads, instead making driving decisions with artificial intelligence (AI) based on input from sensors and available datasets. (32) However, the extent of this remedial effect remains difficult to predict. (33) AV error and exogenous conditions will likely continue to yield crashes even when human control has been fully ceded, and mixing human and driverless vehicles could create an increase in short-term collisions. (34) In particular, AVS still struggle to account for weather including rain, snow, and ice and cannot predict or prepare for every possible roadway scenario. (35) Additionally, the digital technologies that power AVS also open them to cybersecurity issues that could directly cause collisions or promote them by disrupting AV hardware or software. (36)

    Both benefits and risks scale with the degree of automation in AVS. (37) SEA International provided the transnational standard which defines the now well-known levels of automation in AVS from 0 to 5. (38) While level 0 assumes full human control of a vehicle, levels 4-5 involve virtually no human input. (39) Most discussions of AVS focus on those highly autonomous vehicles (HAVS) which require essentially no human control, as these AVS will provide the greatest benefits but pose the most challenging regulatory and legal issues. (40)

    Despite the hype around the governance challenges of AVS, they will not emerge into a regulatory void. (41) Existing federal vehicle regulations and enforcement schemes will also apply to AVS as "inherited regulations," with which AV developers must also comply when designing and manufacturing the ordinary components of the new vehicles. (42) Whether the inherited regulations are appropriately tailored to the new conditions created by AVS remains a separate question and goes beyond the scope of this essay. (43)

    In 1966, Congress enacted the National Traffic and Motor Vehicle Safety Act ("Safety Act") to address the public health hazards posed by traffic collisions. (44) The Safety Act established what would become the NHTSA to set and enforce performance standards on the design, production, and safety features of vehicles. (45) The Federal Motor Vehicle Safety Standards ("FMVSS") constitute the NHTSA'S primary body of safety regulations, (46) which place binding performance standards predominantly in three areas: vehicle (1) crash avoidance, (2) crashworthiness, and (3) post-crash survivability. (47) These standards prescribe minimum performance levels required for various design components and safety features of vehicles such as air bags, impact protection, and fuel system integrity. (48) Between 1960 and 2012, the NHTSA estimates these standards prevented over 600,000 deaths, (49) though morbidity and mortalities from vehicle collisions certainly persist. (50)

    The existing federal regulatory regime for vehicles does contain preemption elements. (51) The Safety Act provides that standards the NHTSA sets will preempt any nonidentical state-level rules, while also carving out an exception for some common law liability. (52) Over several decisions, the Supreme Court has interpreted the Safety Act to impliedly preempt some tort claims that could interfere with implementation of a regulation. (53) When a NHTSA standard allows manufacturers to choose between two different safety features, the regulation can preempt common law claims alleging injury from a vehicle lacking only one of the features. (54) However, preemption will only trigger when providing manufacturers with an option between different safety features furthers a "significant regulatory objective." (55) In other...

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