Monday, May 7, 2018
Mark Geistfeld has posted to SSRN The Regulatory Sweet Spot for Autonomous Vehicles. The abstract provides:
Although federal legislation governing highly automated vehicle (“HAV”) technology has yet to be enacted, developments so far strongly indicate that Congress will finally settle upon a framework that establishes the same roles for federal regulatory law and state tort law that now exist for conventional motor vehicles. Like the HAV bills pending in Congress, the National Traffic and Motor Vehicle Safety Act of 1966 contains both an express preemption provision along with a saving clause, which says that “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law.” These two provisions of the 1966 Act were harmonized by the U.S. Supreme Court in Geier v. American Honda Motor Company, which held that the saving clause embodies a legislative purpose to retain a meaningful role for tort law that can be displaced by federal regulations only as a matter of implied preemption. Because the pending federal HAV bills establish the same roles for federal regulatory law and state tort law that exist under the 1966 Act, the Court’s interpretation of that Act in Geier should extend to the HAV legislation.
As fully illustrated by the safety issue involving the reasonably safe performance of fully functioning autonomous vehicles, federal regulators meaningfully preserve state tort law when they base a federal safety regulation on the associated tort requirement enforced by the majority of states. By complying with this type of regulation, manufacturers would fully satisfy the associated tort obligations in these states, making regulatory compliance a complete defense. In the remaining minority of states, regulatory compliance would foreclose tort liability as a matter of implied preemption. This framework would uniformly regulate HAV technology across the national market while maximally preserving state tort law, thereby hitting the regulatory “sweet spot” that optimally solves the federalism problem.