Wednesday, November 8, 2017
Bob Rabin has posted to SSRN Pathways to Auto Safety: Assessing the Role of the National Highway Traffic Safety Administration. The abstract provides:
The Motor Vehicle Safety Act directs the National Highway Traffic Safety Administration (NHTSA) to promulgate and enforce vehicle safety regulations, issue vehicle and component recalls, and conduct research and gather data to support its safety mission. Published twenty-five years ago, Jerry Mashaw & David Harfst’s study, The Struggle for Auto Safety, offered a comprehensive critique of the agency’s performance through its early decades. The authors concluded that after an initial flurry of important rulemaking activity, extending through 1974, NHTSA’s record on the rulemaking front was marked by failed opportunities. Essentially, they concluded that the agency abandoned meaningful rulemaking after its early years and took a path of lesser resistance — resistance, in particular, from Congress, the courts and the auto industry — relying on inefficacious recalls, rather than rulemaking, as its principal regulatory strategy.
In this chapter of a collection of essays celebrating the career of Prof. Mashaw, I reassess their critique twenty-five years later. Reviewing NHTSA’s rulemaking and recall activities since 1990, I conclude that Mashaw and Harfst’s criticisms of NHTSA’s rulemaking performance remain largely valid. I am somewhat more optimistic, however, with regard to the potential for a robust recall program to improve auto safety—despite the agency’s substandard response, discussed in detail in my essay, to the GM ignition switch engine shutdown cases.
I surmise that if NHTSA were to receive adequate resources, adopt the necessary political will, and work towards a culture of “skeptical receptiveness” in its approach to the auto industry — undeniably big ifs — its recall program could become a vital and effective regulatory tool. To provide context, I also discuss the complementary roles that tort and no-fault liability might play.