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Commentary on Legal Issues Surrounding Self-Driving Cars

Work in progress ...

http://www.reuters.com/article/us-usa-selfdriving-idUSKBN18X2W4


Do your best to stay out of the way. As usual, I don't see this as a federal issue. Stopping one state from taxing another's goods is one thing. That's the interstate commerce envisioned from what I've looked at. Deciding whether a car should have a gas pedal or steering wheel while operating inside a state, is usurpation. While one could try to stretch commerce into commercial vehicles, I would wonder if the feds regulated horses and wagons going between states back in the day. Maybe they did. Regardless, regulating travel of citizens between states is something completely different.

One-size-fits-all will certainly make it cheaper for manufacturers, but then that sort of removes a lot of flexibility and the potential for adaptation and improvement in the microcosm of each State and IMO will help the big boys strangle innovators. It may also encourage the manufacturers to avoid responsibility if their product goes haywire - saying they met whatever standards.

Let's turn to the air industry for some inspiration. The Cessna, for example, hasn't really changed all that much since it was originally designed. Yes, there are newer planes, but they cost much, and I'm of the opinion, ignoring energy efficiency, that the legislation in this space made innovation expensive and drove costs up to the point that we are ... still ... talking about roads because of legislative intervention, instead of flying self-driving cars. Pie in the sky.

You are entering an area where the pace of innovation will simply overspeed whatever legislative frameworks you may put into place. Why? Because it involves software, sensors, and so on.

I see this happen quite often when industries that are not used to cyberspace decide to connect their stuff to the Internet. They often just aren't prepared to meet the speed of innovation. Imagine if a legislative body, which moves like molasses, tried to keep up.

Another issue I see occurring is in the area of liability. If a car has to decide between killing 6 people or 1, stuff like that, who gets the bill? The car manufacturers, once legislation is involved, will figure a way to not get left holding the bag is what I expect to happen. They will be incented to lobby nice Congressmen to bend the law their way.

So what are we talking about here? How can someone be confident that their machine, once released, won't kill anyone? We can't! Bugs will happen. It is software, and sometimes mechanical failures too!

Remember the Ford exploding gas tank issue? It took Ford ~30 years to recover. Public outcry can be a powerful force. If manufacturers of self-driving cars find their products start killing folks, they won't sell for very long!

Quoting from LexisNexis (https://www.lexisnexis.com/legalnewsroom/lexis-hub/b/commentary/archive/2010/03/25/ford-is-still-haunted-by-exploding-gas-tanks-as-a-multi-million-dollar-award-of-punitive-damages-is-affirmed.aspx):

"Sound public policy requires that a manufacturer be held to a continuing duty to warn of a hazard and to notify consumers of its product if the hazard can be avoided. We hold that a manufacturer has a continuing duty to warn of a hazard of which it had a duty to warn at the time the product was manufactured, including using reasonable care to inform foreseeable users of product developments designed to eliminate the hazard."

In other words, if you sell something that has issues in certain cases, it's on you to tell folks about it. If I sell someone a hammer, that I know is fractured somehow, and I state that it is in good condition, then it would be fraudulent of me not to disclose that before the sale, because not doing so is a type of fraud, and if it flies off the handle, well ... I suppose that's on me. But, if I inform of what I know, that's a different ball game, and if I don't know of all the risks, and inform, well buyer beware - you are assuming liability! My point is these types of issues are more fraud related than anything else, so the root is more to do with informing and consenting than anything to do with roadway standards. It has a steering wheel? Doesn't have one? Who cares!

Does it crash into people when a chicken crosses the road? Do people driving it understand this risk? If so, then that's on them for driving it, and if not, on the manufacturer, and so forth. So I don't think you guys need to get really fancy here. We are talking about the same basic pattern for a lawn mower, a ford panther (pinto?), or any other device.

Here's the key, IMO, in the previously mentioned case:

"the jury was entitled to resolve the conflicting evidence in favor of the plaintiffs."

There's also the issue of cars getting hacked and turned into weapons, I suppose. That's not quite here yet, but I expect it will be soon enough. What happens is you guys may try to set some minimum standards to follow, and that is exactly what the manufactures will focus on, rather than innovation and avoiding lawsuits, IMO. So yeah, setting some standards will make it cheaper, but it also gives the manufacturers something to hang their hats on if something goes horribly wrong. How about they foot the bill for their fancy testing facilities, hire some independent parties to do the testing, 

Eventually, it may be argued that driving a car for one's self is a risk to others, and some genius may try to ban driving manually.

In short, please try to think about how your efforts to make things better, will generally always make things worse, eventually.