System-Level Standards: Driverless Cars and the Future of Regulatory Design
52 Pages Posted: 12 Feb 2018 Last revised: 5 Aug 2018
Date Written: June 22, 2018
Self-driving vehicles will change how Americans travel, work, and live. They have the potential to save tens of thousands of lives over the coming decades. And they are almost here. This Article provides one of the first sustained scholarly accounts of how the National Highway Traffic Safety Administration (NHTSA or Agency) should regulate autonomous vehicles under the Motor Vehicle Safety Act. Currently, NHTSA sets performance safety standards for many motor vehicle parts and functions. This Article argues for an innovative regulatory approach: system-level standards. In contrast to current regulatory approaches, which regulate the safety of individual automobile parts and functions, system-level standards would protect consumers by requiring an aggregate level of safety for autonomous vehicles. This novel approach to regulatory design would protect safety without stifling innovation.
Part I of this Article examines NHTSA’s role in regulating motor vehicle safety. It provides a historical overview and takes an in-depth look at the Agency’s statutory powers. Part II then discusses NHTSA’s current approach to regulating self-driving cars and argues that the Agency is engaging in a three-phase regulatory process. The first phase involves building knowledge and issuing guidance, the second phase is one of cooperative regulatory easing, and the third phase—one that is yet to unfold—will likely involve the implementation of Federal Motor Vehicle Safety Standards (FMVSS). Finally, Part III of this Article proposes a regulatory path forward for self-driving cars. Section III.A develops a taxonomy of FMVSS designed to better analyze the level at which NHTSA should regulate autonomous vehicles. Section III.B then proposes an innovative, system-level regulatory framework for autonomous vehicles. Under the proposal, NHTSA would issue a FMVSS requiring that all autonomous vehicles average no more crashes than today’s human-driven cars based on ten million miles of on-road testing in representative conditions. Sections III.C & III.D end by exploring regulatory alternatives.
This Article’s approach to regulatory design offers an immediate path forward as regulators determine how best to govern autonomous vehicles. Equally important, this Article reflects a broader view of regulation—one that protects consumers without constraining technological development. This system-level approach will become increasingly important as technological complexity rises and current regulatory tools lose their ability to protect safety without stifling innovation.
Keywords: Administrative Law, Regulatory Design, Self-Driving Cars, Driverless Cars, Regulation of Emerging Technologies
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