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3A LOOK AT THE LEGAL ENVIRONMENT FOR DRIVERLESS VEHICLES By Dorothy J. Glancy, Robert W. Peterson, and Kyle F. Graham, Santa Clara University School of Law, Santa Clara, California I. INTRODUCTION Driverless vehicles have been predicted, prom- ised, and desired for decades. Finally, technologies necessary to realize these devices have become available. The question is no longer if, but when, driverless vehicles will become available to the pub- lic. When they do, driverless vehicles will transform ground transportation in the United States and around the world. Capable of operating without human control over their operation, driverless vehicles are anticipated to have numerous advantages in terms of safety, conve- nience, mobility, and environmental protection, rela- tive to their conventional counterparts. By freeing up what would otherwise be a driver for other tasks, driverless vehicles may increase the productivity of their users. The enhanced awareness and reaction capabilities of these vehicles eventually should result in thousands of saved lives and avoided vehicle crashes. Intelligently coordinating the movements of driverless vehicles should eliminate or at least miti- gate traffic congestion, air pollution, and human frustrations incident to everyday driving. Full realization of these benefits, however, will require modifications to some prevailing legal prin- ciples that expect motor vehicles to have drivers in control. Conventional motor vehicles operated by human drivers are subject to an elaborate architec- ture of legal rules. These rules cover such topics as how these vehicles are to be designed, manufac- tured, sold, repaired, and used; how liability should be assigned for injuries caused by these devices; the sorts of misconduct that will be regarded as crimi- nal; automobile insurance; and the appropriate uses of land for roads, highways, and other transporta- tion infrastructure. Driverless vehicles will lead to changes in some of these rules, particularly those that at present may not fully account for how these devices operate. This report discusses the legal environment that will apply to driverless vehicles. The sections that follow consider how driverless vehicles may fit within or challenge existing rules, and, as relevant and appropriate, suggests how these rules could be modified to better serve the public interest. As a for- ward-looking analysis, this discussion is necessarily speculative, and relies on numerous assumptions regarding matters including how driverless vehicles will operate and how long it will take for them to come into common use. Nevertheless, even at this early juncture, policymakers should benefit from an assessment of how driverless vehicles mesh with the prevailing legal order. Policymakers should appreciate the variety of tools at their disposal as they decide how to antici- pate and respond to driverless vehicles. Legal poli- cies within this sphere may take the form of restric- tions, permitting, bonding, rules of the road, product or performance standards (be they design-based, harm-based, or technology-based), criminal penal- ties, civil liability (either in the form of fines payable to the government or liability to third parties), social insurance programs, knowledge-building and techni- cal assistance, rewards and subsidies, advance-plan- ning requirements, or mandatory reporting rules.1 Other regulatory policies may modify the environ- ment in which a technology is used and manage both awareness and expectations that surround the tech- nology. Alternatively, policymakers may choose to defer to market mechanisms and emerging social norms, as well as industry self-regulatory initiatives. Some of these tools are standard, others more exotic. To a significant extent, past practice will provide inertia and experience that will steer policymakers toward particular policy responses regarding driver- less vehicles; the law often looks backward to provide rules for the present and future. Following this introduction, this report will exam- ine in Section II how policymakers of the past addressed some of the challenges associated with once-novel technologies such as railroads, steam- boats, airplanes, and conventional automobiles. Sec- tion III of the report will provide an overview of the characteristics of driverless automobiles. Section IV then considers how prevailing civil liability rules may apply to driverless vehicles, while Section V estimates how criminal liability may adhere to their use and misuse. Section VI addresses how these vehicles will be insured, and the changes they may 1 For a discussion of these policy tools, see U.S. Con- gress, offiCe of TeChnology AssessmenT, environmenTAl PoliCy Tools: A Userâs gUide, oTA-env-634, U. s. govT. PrinTing offiCe, WAshingTon, D.C. (1995).
