12 April 2019

Autonomous Vehicles, Liability and Incentives

'Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era' by Kenneth S Abraham and Robert L Rabin in (2019) 105 Virginia Law Review 127 comments
Over a century ago, industrialization and its accompanying increase in workplace injuries were placing substantial pressures on the tort system and its ability to compensate the victims of these injuries. Eventually, the interests of labor and management came together, giving rise to a new administrative compensation system. Unlike tort remedies, this new scheme imposed strict financial responsibility on employers for work-related injuries to their employees. This system of workers’ compensation is still the most far-reaching tort reform ever adopted – promoting safety and compensating for injuries more effectively than tort did both at the time and today. Workers’ compensation has its flaws, but there is no significant desire on anyone’s part to go back to tort. 
We are on the verge of another new era, requiring yet another revision to the legal regime. This time, it is our system of transportation that will be revolutionized. Over time, manually driven cars are going to be replaced by automated vehicles. The new era of automated vehicles will eventually require a legal regime that properly fits the radically new world of auto accidents. The new regime should promote safety and provide compensation both more sensibly and more effectively than what could be done under existing tort doctrines governing driver liability for negligence and manufacturer liability for product defects. Like labor and management a century ago, auto manufacturers, consumers, and the public at large – often currently at odds about the tort system – will need to have their interests come together if the new era of automated transportation is to be governed by an adequate legal regime. 
Any new approach will have to deal with the long and uneven transition to automated technology, impose substantial but appropriate financial responsibility for accidents on the manufacturers of highly automated vehicles, and provide satisfactory compensation to the victims of auto accidents in the new era. This Article develops and details our proposal for an approach that would accomplish these goals.
'Automatorts: How Should Accident Law Adapt to Autonomous Vehicles? Lessons from Law and Economics' (Hoover Institution Working Group on Intellectual Property, Innovation, and Prosperity, 2019) by Eric Talley comments
The introduction of autonomous vehicles (AVs) onto the nation’s motorways raises important questions about our legal system’s adaptability to novel risks and incentive problems presented by such technology. A significant part of the challenge comes in understanding how to navigate the transition period, as AVs interact routinely with conventional human actors. This paper extends a familiar multilateral precaution framework from the law and economics literature by analyzing interactions between algorithmic and human decision makers. My analysis demonstrates that several familiar negligence-based rules (for precautions and product safety) are able to accommodate such interactions efficiently. That said, a smooth transition will likely require substantial doctrinal/legal reforms in certain states, as well as a more general reconceptualization of fault standards across all states – not only for AVs but also for for human actors themselves.
The Optimal Agent: The Future of Autonomous Vehicles and Liability Theory' by Brian Seamus Haney comments
Autonomous Vehicles (“AVs”) are rapidly disrupting the $4 trillion auto industry. Indeed, questions surrounding AV regulation are some of the most important to be answered in the Twenty-First Century. Yet, legislators have yet to address or even identify some of the most critical issues relating to AV regulation. 
This paper explains the unique issues that deep reinforcement learning systems pose for AV technology, policy, and law. Additionally, this paper identifies two important regulatory problems that legislators and scholars need to address in the context of AV development. Legal scholars have made clear that there is a demanding need for some sort of regulatory system for AVs. However, those arguments focus on short term regulation and generally misunderstand the evolutionary rate of AV technology. This paper takes an informatics based approach to analyzing issues in AV regulation with a specific emphasis on the technical aspects of AV systems. Further, this paper discusses and explains the formal models that are currently being used as a foundation for AV development. Ultimately, AV technology will change the way humans move throughout the world and legislators must prepare immediately for the endeavor ahead in regulating AVs.
'Who’s Driving That Car?: An Analysis of Regulatory and Potential Liability Frameworks for Driverless Cars' by Madeline Roe in (2019) 60 Boston College Law Review 315 comments
Driverless, or autonomous, cars are being tested on public roadways across the United States. For example, California implemented a new regulation in 2018 that allows manufacturers to test driverless cars without a person inside the vehicle, so long as the manufacturers adhere to numerous requirements. The emergence of these vehicles raises questions about accident liability and the reach of state regulation regarding driverless cars. To address these questions, it is beneficial to look at the liability framework for another artificial intelligence system, such as surgical robots. This Note will explore possible frameworks of liability before arguing in support of further regulation of driverless cars and hypothesize that the liability for driverless car accidents will likely shift from the driver to the manufacturer. 
'The Case Against Taxing Robots' by Robert D. Atkinson of the Information Technology and Innovation Foundation comments 
 A disturbing trend in the world of public policy in recent years has been the extent to which fads and groupthink now shape public debates and galvanize support for ill-advised ideas and proposals. In the first phase of this process, someone — often a person of some notoriety, but not necessarily expertise — puts forth a new idea or claim, which is then amplified by a media increasingly focused on marketing the next new thing. Then comes a wave of articles, speeches, blogs, op-eds, and of course TED Talks, all providing supporting “evidence” and arguments for why the initial idea is the “best thing since sliced bread.” Voila: What begins as a loopy, even harmful, idea is now all the rage. Once this critical point of no return is reached — when “everyone” knows something is true — policymakers have only a short distance left to travel to turn what appears to be an inspired analysis into actual law. 
In the subcategory of science, technology, and innovation policy, there is no better case in point than today’s increasingly popular view that governments should increase taxes on capital equipment. Or, as the advocates say, “It’s time to tax the robots.” This idea has been around for a while, and gained considerable traction in 2017 when Microsoft founder Bill Gates argued, “At a time when people are saying that the arrival of that robot is a net loss because of displacement, you ought to be willing to raise the tax level and even slow down the speed of that adoption somewhat.” After all, as a technology pioneer and billionaire, Bill Gates is anything but a tin foil hat-wearing Luddite. Since then, the calls for taxing those job-killing robots have become a veritable tidal wave. One can barely go a week without reading yet another article or comment on the topic. 
Robot taxers make three main arguments in support of their position: As this paper will show, all three arguments are wrong. At the end of the day, robot taxers are suffering from and contributing to a techno-panic over jobs. “Help!” they cry, “Robots are coming for our jobs! We can’t just eliminate any policies that support automation; we need to proactively erect barriers to it.” In fact, moving in that direction would be the worst possible thing for policymakers to do. Given that the U.S. economy has been in an unprecedented productivity growth slump for more than a decade, and the massive baby boom retirement wave is rising, economies desperately need faster productivity growth to have any hope of increasing after-tax wages faster than some minimal rate of growth. The last thing policymakers should do is reduce the incentive for companies to invest in new machinery and equipment, as that would slow down needed productivity growth. Instead, with first-year expensing provisions set to expire automatically at the end of 2022, one of the best things Congress could do to ensure strong growth in the future would be to make that provision permanent and then couple it with an investment tax credit.