Regulating the Future: Autonomous Vehicles and the Role of Government

• Author: Matthew L. Roth
• Position: J.D. Candidate, The University of Iowa College of Law, 2020; B.A., Drake University, 2016
• Pages: 1411-1446

1411

Regulating the Future: Autonomous

Vehicles and the Role of Government

Matthew L. Roth*

ABSTRACT: Within the next decade, society will be revolutionized by the

presence of almost completely autonomous vehicles on our roadways. The

amount of traffic fatalities will decrease, road congestion will disappear, and

people will be able to watch their favorite Netflix show while on the way to

work. This Note critically analyzes the current regulatory gap in autonomous

vehicle technology, with a focus on problems arising from a patchwork of state

laws and the lack of federal regulation. At this critical juncture in time,

consumers are distrustful and hesitant of the technology. This Note argues

that the National Highway Traffic Safety Administration should pass new

manufacturing and safety standards to fill the regulatory gap and assure

consumers that autonomous vehicles are both viable and safe. Failure to create

national regulation will see the dream of robotic cars filling the roads go up

into smoke.

I.INTRODUCTION ........................................................................... 1412

II.AVS: THE HISTORY, THE FUTURE, AND HOW THEY RELATE

TO STANDARD VEHICLES ............................................................. 1414

A.WHAT DOES “SELF-DRIVING” MEAN? ..................................... 1415

B.THE HISTORY AND FUTURE OF AUTONOMOUS VEHICLE

TECHNOLOGY ....................................................................... 1418

C.REGULATION OF STANDARD AUTOMOBILES ............................. 1420

1.Federal Oversight of Vehicle Safety and

Manufacturing ............................................................. 1420

2.Regulatory Role of the States ..................................... 1423

III.THE CURRENT GAP IN AV REGULATION AND PUBLIC

PERCEPTION ............................................................................... 1425

A.THE PATCHWORK OF STATE AV LAWS .................................... 1426

1.State Traffic Law Exemptions for AVs ....................... 1426

*

J.D. Candidate, The University of Io wa College of Law, 2020; B.A., Drake University, 201 6.

1412 IOWA LAW REVIEW [Vol. 105:1411

2.State-Level Preemption of Municipal AV

Regulation.................................................................... 1427

3.AV Maintenance and Liability .................................... 1427

4.Differing Legal Definitions of AVs ............................. 1428

B.THE LACK OF COMPREHENSIVE FEDERAL REGULATION ............ 1429

1.The NHTSA’s Yearly Non-Regulatory Reports

on AVs .......................................................................... 1430

2.Inaction in Congress and the White House .............. 1433

C.CONSUMER CONFIDENCE IN AV TECHNOLOGY ......................... 1434

1.Deaths Caused by AV Technology ............................. 1435

2.Measuring Consumer Skepticism in AVs ................... 1436

IV.TURNING VOLUNTARY NHTSA GUIDELINES INTO ROBUST

FEDERAL REGULATION ................................................................ 1438

A.AVOIDING A PATCHWORK OF STATE LAWS THROUGH

NHTSA REGULATION ........................................................... 1438

B.MANDATORY REGULATIONS, NOT VOLUNTARY GUIDELINES .... 1440

1.Issuing New Federal Regulations for AVs .................. 1440

i.AVs: A New Category of Automobiles ........................ 1441

ii.Preempting State Regulation of AVs .......................... 1442

iii.Expanding Testable Unit Amounts and Easing

Exemption Requirements .......................................... 1443

2.Improving Consumer Confidence Through

Education and Pre-Market Approval ......................... 1444

i.Creating an AV Advisory Council ............................ 1445

ii.Adopting a Pre-Approval Regime for AV

Components ............................................................. 1446

V.CONCLUSION .............................................................................. 1446

I. INTRODUCTION

“Every once in a while a new technology, an old problem and a big

idea turn into an innovation.” -Dean Kamen1

1. Chloe Sorvino, One of America’s Most Successful Inventors Dean Kamen Talks Segway, Clean

Water and Robotics, FORBES (June 9, 2016, 10:11 AM), https://www.forbes.com/sites/chloe

sorvino/2016/06/09/dean-kamen-inventor-success-segway-water-purification-toyota [https://

perma.cc/M4MT-FEH8]. Dean Kamen, known by many for inventing the Segway, is an

entrepreneur that has helped pioneer technologies in other industries. See Chris Morris,

Legendary Inventor Dean Kamen Jumpstarts Human Organ Manufactur ing in the US, CNBC

(Apr. 19, 2018, 9:16 AM), https://www.cnbc.com/2018/04/19/legendary-inv entor-dean-

kamen-jumpstarts-human-organ-manufacturing-in-the-us.html [https://perma.cc/R2UU-4LAX]

(noting how Dean Kamen recently founded a new company to mass produce biofabricated

human organs for transplants and previously had developed a “drug infusion pump for

2020] REGULATING THE FUTURE 1413

In the next few years, the introduction of fully autonomous vehicles

(“AVs”) onto American roadways will revolutionize how people drive, will

hopefully reduce traffic fatalities, and will trigger a litany of legal questions.

For example, how should they be regulated? In 2017, over 37,100 people

were killed in driving-related accidents in the United States.2 The U.S.

Department of Transportation (“DOT”) estimates that human error while

driving caused 94 percent of those fatal accidents.3 At least one study has

indicated that introducing an early form of autonomous vehicle technology

onto American roadways could reduce traffic deaths by ten percent.4

However, once truly autonomous vehicles hit the roads, traffic deaths could

be reduced by as much as 90 percent.

5 But given the nascency of the AV

industry, it is difficult to precisely determine to what extent driverless vehicles

will reduce the amount of yearly fatalities.6 Nonetheless, industry experts and

the federal government both agree that AVs will still save lives.7 The lifesaving

potential of AV technology increases as the dependency on human decision

making while driving decreases.8 “[I]mpaired driving, distraction,

. . . speeding or illegal maneuvers[,] . . . [and] drinking and driving” caused

an estimated 25,000 of the traffic deaths in 2017.9 Computer programming

does not succumb to these factors affecting human decision making.10

diabetics”); see also Sorvino, supra (noting how Dean runs a nonprofit foundation “focused on

exciting students ages 6 to 18 around the globe about robotics, engineering and math”).

2. U.S. DEP’T OF TRANSP., PREPARING FOR THE FUTURE OF TRANSPORTATION: AUTOMATED

VEHICLES 3.0, at 1 (2018) [hereinafter REPORT 3.0].

3. Aarian Marshall, To Save the Most Lives, Deploy (Imperfect) Self-Driving Cars AS AP, WIRED

(Nov. 7, 2017, 12:01 AM), https://www.wired.com/story/self-driving-cars-rand-report [https://

perma.cc/X7J3-YU9T].

4. Id. The researchers found that current AVs are “about 10 percent safer” as compared to

the average human driver. Id.

5. Adrienne LaFrance, Self-Driving Cars Could Save 300,000 Lives Per Decade in America,

ATLANTIC (Sept. 29, 2015), https://www.theatlantic.com/technology/archive/2015/09/self-

driving-cars-could-save-300000-lives-per-decade-in-america/407956 [https://perma.cc/CQ43-

Y4TR].

6. AV technology is largely still in the testing phase. See infra notes 41–44 and

accompanying text (explaining that current AVs are between the 1–2 Level, with Level 3s a bout

to roll out into commercial markets). Once fully autonomous driving systems are developed,

testing may provide a more accurate measure of how many lives can be saved. Marshall, supra

note 3.

7. Marshall, supra note 3; REPORT 3.0, supra note 2, at 41.

8. REPORT 3.0, supra note 2, at 3.

9. Id.

10. See Marshall, supra note 3 (noting how AVs will not “drink or text or yell at their kids in

the backseat”). However, traffic deaths involving AVs are inevitable. See infra notes 179–88 and

accompanying text (detailing the three AV-related deaths so far). Computer programming is not

perfect, and AVs will need programming dictating how the vehicle responds to an unavoidable

collision. See Bryant Walker Smith, The Trolley and the Pinto: Cost-Benefit Analysis in Automated

Driving and Other Cyber-Physical Systems, 4 TEX. A&M L. REV. 197, 200–01 (2017) (describing the

ethical thought experiment of the Trolley Problem as applied to AVs). The Trolley Problem

involves an ethical dilemma where a trolley is destined to hit several pedestrians stand ing on the