John Villasenor on Driverless Cars and Liability

By Benjamin Wittes
Monday, May 5, 2014, 3:55 PM

Wells and I and our Brookings colleague John Villasenor have begun a paper series of civilian robotics. Some of it is a little beyond normal Lawfare fare, but some of it will be in the heartland. The first paper in the series, which we released recently, is by John and deals with driverless cars and liability rules for car accidents. I asked John to write a few words about it:

Thanks to investments by companies such as Google and the major automakers, driverless car technologies---or, more formally, vehicle automation technologies---are getting better by the day. As advanced vehicle automation moves from the laboratory to commercial use, there will be enormous highway safety benefits. But there is a hitch, or at least a perceived hitch.

As an article last year in the San Diego Union-Tribune noted, according to “experts,” “the issue of liability, if not solved, could delay or even wipe out the vision of driverless cars gaining widespread consumer use.” Or, as an article at MSN put it, “Will lawsuits kill the autonomous car?”

The laws of statistics ensure that even though autonomous vehicle technology will, on balance, lead to increased safety, there will be relatively rare instances where automation might be a contributing or even primary factor in an accident. This will lead to some complex liability questions. But, importantly, that doesn’t mean our existing legal framework will be incapable of answering them.

I recently completed a study of products liability in the specific context of autonomous vehicles. As I wrote in the resulting Brookings paper:

The legal precedents established over the last half a century of products liability litigation will provide manufacturers of autonomous vehicle technology with a very strong set of incentives to make their products as safe as possible. In the overwhelming majority of cases, they will succeed. However, despite these efforts, there will inevitably be some accidents attributable in whole or in part to defects in future vehicle automation systems. While this will raise complex new liability questions, there is no reason to expect that the legal system will be unable to resolve them.

This means that we don’t need to delay access to vehicle automation by saddling legislators with the impossible task of preemptively drafting and enacting new liability statutes to address everything that might go wrong. Again, from the paper:

This paper, and the set of legislative guiding principles it provides, reflect a view that, subject to a few narrow exceptions, existing tort and contract law frameworks are generally very well equipped to address these questions. Thus, there is not a need to encumber the legal system with a new set of overly broad federal or state liability statutes relating to autonomous vehicles. Products liability law offers a time-tested framework that has proven to be adaptive to technology-driven liability issues in many other contexts. There is good reason to be optimistic that it will be equally capable of doing so when applied to autonomous vehicles.

And, in somewhat more detail:

Products liability has been one of the most dynamic fields of law since the middle of the 20th century. In part, this is because the new technologies that emerged over this period have led courts to consider a continuing series of initially novel products liability questions. On the whole, the courts have generally proven quite capable of addressing these questions, and in doing so have been the primary drivers of a positive feedback cycle involving case law, the American Law Institute’s Second (in 1965) and Third (in 1998) Restatements, revisions to the Uniform Commercial Code, and changes to state statutory law. Through this process, products liability law has evolved to its current state. Given this strong record of adaptation to new technologies, there is no reason to expect that the legal system will be unable to address the products liability issues that arise with respect to autonomous vehicles.

So, yes, the products liability issues raised by autonomous vehicle technology will sometimes be complex. But they can be largely addressed using the framework we already have.