Regardless of the mixed reactions to Tesla’s new Cybertruck, the electric vehicle revolution is here. Some analysts have predicted that within twenty years, half of new vehicles sold will be electric. For the future of the planet, we may need them to be. One core tenet of climate change mitigation is fairly simple in concept, even if difficult in practice: electrify everything. Quickly phasing out polluting technologies—such as the internal combustion engine—and replacing them with electric batteries that are charged by renewable energy sources is our best shot to reduce emissions fast enough to limit some of the worst effects of climate change.

One thing standing in the way of our electrified future is—or as will be discussed below, may be—the lack of charging infrastructure. Electric vehicles today travel about 200 miles per charge. This is a shorter distance than most gasoline-fueled cars. And gasoline-powered cars need a five minute fill-up after traveling a few hundred miles, which is much less onerous than the hour or two that it would take to restore the 200 mile range on your electric vehicle even with the best available chargers.

But how much of a problem is the lack of infrastructure, really? The average driver only rarely takes road trips of several hundred miles. Indeed, the average car only drives forty miles per day. Level 2 EVSE charging infrastructure is relatively inexpensive to install in most homes, and powerful enough to charge a vehicle overnight. Given how cheap it already is to charge a vehicle at home, it’s no surprise that most existing public charging stations are rarely used.

This ease of charging at home is likely to be a key long-term difference in infrastructure needs between the incoming era of electric vehicles and the past era of gas-powered vehicles. It would be implausible to install a gas pump in your home garage, making publicly available filling stations placed throughout cities and towns a necessity. When it comes to electric vehicles however, far fewer stations should be needed on the surface streets because the vast majority of people driving on them will be able to get more than enough charge by simply plugging into a wall outlet each day.

Of course, EV charging infrastructure will still need to be built out in order to maximize the uptake and utility of the next generation of cars. While the vast majority of people drive no more than a few dozen miles on a daily basis, most will also expect to take the occasional long road trip during the useful life of their car. Even as modern EVs push towards a 300 mile battery range, having to stop for an hour or more to recharge every few hours will continue to be seen as impractical.

This means there will continue to be a need for superfast chargers. The good news is, speedy chargers are already on the horizon. Late last year, Porsche and BMW unveiled a prototype charging station that will supply roughly sixty miles of battery life in just three minutes, about the length of time it takes to fill up a gas tank today. Venture capital investments in EV charging infrastructure totaled $1.7 billion from 2010 through the first quarter of 2019, and the total amount rose every year from 2015 through 2018.

Such investment, and the continued technological improvement it brings, will be necessary for the EV takeover of the vehicle market to reach its full potential. But thanks to increasing battery ranges and the ease of charging at home, the need for buildout with day-to-day use in mind may not be so great as previously thought.

Earlier this week, Raphaël wrote about the role for no-fault insurance in an age of automated vehicles. The post raised several important questions about the future of the auto insurance industry as technology advances:

Who do we want to protect? Passengers, for sure. But drivers? There is no driver! Or rather, there are many drivers. To some extent, at least under a layman’s understanding of the term “driver,” all the actors along the supply chain are driving the AV. Or, to be more precise, it is difficult to pinpoint a single driver: the “operator”? The software designer? And that is already assuming that there is a single entity who designed the software or operates what may be a fleet of AVs. And there may be others, as the AV industry continues to evolve

While Raphaël’s questions will be extremely important for the industry going forward, I want to pose a slightly different question here: Should drivers of Level 4 or Level 5 automated vehicles be required to purchase insurance at all?

Today, every US state except New Hampshire and Virginia require vehicle owners to purchase auto insurance. In a world where human drivers are in control of the vehicle, this makes sense. While flawed product designs or other manufacturer errors may contribute to car accidents today, many if not most accidents also involve some element of operator error.

In a world of fully autonomous vehicles however, this will no longer be the case. The human sitting in what is today the driver’s seat will not be in control of the vehicle in any meaningful way. Every movement such a vehicle makes will have been designed and programmed by the manufacturer or some company along its supply chain.

Given the extent of manufacturer control, would it be reasonable to have accident payouts determined by the law of products liability? Or perhaps, as Michigan Law professor Kyle Logue argued in a recent article, liability should be apportioned through a scheme of strict enterprise liability, in which automakers would be “unconditionally responsible for the economic losses resulting from any crashes of their vehicles.”

Even with the heightened manufacturer liability that may accompany highly autonomous vehicles, some room may be left for owner error, and thus for traditional insurance. Owners may be held responsible for routine maintenance of their vehicles, for ensuring software is upgraded in a timely fashion, or for actions taken if the vehicle is ever taken out of autonomous mode. But even if some minimal level of owner responsibility leads lawmakers to reject Professor Logue’s theory of enterprise liability in favor of maintenance of insurance requirements for owner/operators, insurance’s role will surely be different than it is today.

Which brings me back to a version of Raphaël’s questions that I started with. Who is the true operator of an AV, and what are they responsible for? Answering these background questions will go a long way towards determining the future of auto insurance in the era of automated vehicles.

I recently wrote about a renewed federal push to regulate automated vehicles. I’ve previously highlighted a range of state regulatory schemes, including California’s relatively strict set of regulations. Meanwhile, the advent of truly automated vehicles, which seemed imminent when Waymo announced its driverless shuttle service in Phoenix, now may be farther away than we expected. Waymo’s shuttle’s still have human safety drivers, and the technology has not advanced as quickly as expected to handle all the vagaries of the road.

But as Congress and the states struggle to get a regulatory handle on this new technology, a recent Tesla update raises an important question. Is the regulatory state agile enough to adapt when the automated vehicle market evolves in unexpected ways?

Last week, Tesla unveiled “Smart Summon,” a feature in some vehicles that allows the user to summon the car to their location. With a range of 200 feet, Smart Summon is primarily designed for use in parking lots. At least one video shows its successful use in a Costco parking lot, avoiding pedestrians and other vehicles to meet its owner at the storefront. However, the feature is not limited to use in parking lots, and videos have emerged of users trying out Smart Summon on public roads, and even running in front of their vehicle to try and make the car chase them. Despite the potential dangers this technology presents, no one has yet been injured or hit by a driverless Tesla being summoned.

Despite the seriousness with which California takes automated vehicle regulation, state authorities have determined that Teslas equipped with Smart Summon are not autonomous, and thus do not need to meet California’s AV standards. Based on regulatory definitions, this is probably the correct. A state DMV spokesperson said the state defines AVs as vehicles able to drive without active physical control or monitoring by a human. Smart Summon requires a user to be attentive to their smartphone. Furthermore, its inability to operate more than 200 feet from a human controller means that it would not satisfy SAE autonomous driving level four or five.

Despite not being a true AV though, it’s clear that Smart Summon presents many of the same dangers as one. It operates in unpredictable parking lots, filled with pedestrians and vehicles and shopping carts all moving around each other in unpredictable ways. It is the sort of environment that can get dicey for a human driver, with our experience and understanding of the subtle signals humans give off to make an otherwise unexpected move a little bit more predictable. And despite a small-print company warning that Smart Summon requires “active driver supervision,” the amount of supervision anyone can truly give a moving vehicle from 200 feet away is certainly questionable.

And yet, these vehicle are not AVs. Instead, they seem to fall within an increasingly muddled gray area of transportation that is something short of fully automated, but requires much less than full and active driver attention. In California’s current regulatory environment, this technology fits neatly into a gap.

A year ago, many people assumed we were rapidly approaching the rise of Level 4 automated vehicles that could operate smoothly on city streets. Regulations developed at the time are written with that sort of technology in mind. Even one year out, legislators were not thinking of how to assure the safety of something like Smart Summon.

So how should something like Smart Summon be regulated? What will autonomous—or semi-autonomous—technology look like a year from now, and how can government agencies prepare for it? Given the unpredictable nature of an early stage technology, regulators will continue struggling to answer these questions.

Back in January, I wrote about the auto industry’s growing sense that a set of nationwide regulatory standards was needed to govern automated vehicles (AVs). To date, twenty-nine states and Washington, DC have enacted AV-related legislation. A handful more have adopted Executive Orders or developed some other form of AV regulation. As the number of states with varying regulatory regimes continues to rise, the industry and some experts have grown concerned that the need to comply with a patchwork of disparate laws could hinder development of the industry.

Despite these concerns, and bipartisan support, the federal AV START Act died in the Senate at the close of 2018. After passing the House, a group of Senate Democrats became concerned that the bill focused too much on encouraging AV adoption at the expense of meaningful safety regulation. After the bill went down at the end of the year, the industry significantly reduced its lobbying efforts. This led some observers to conclude that the effort to pass AV START would not be renewed any time soon.

Never ones to let a good acronym go to waste, several members of Congress have begun work to revive the American Vision for Safer Transportation Through Advancement of Revolutionary Technologies (AV START) Act. Over the summer, a bipartisan group of lawmakers in both chambers held a series of meetings to discuss a new deal. Their hope is that, with Democrats now in control of the House, the safety concerns that stalled the bill in the upper chamber last winter will be assuaged earlier in the process.

Congress’ efforts, spearheaded by Senator Gary Peters (D-MI) appear to be making at least some headway. Both the House Committee on Energy and Commerce, and the Senate Committee on Commerce, Science and Transportation, sent letters to a variety of stakeholders requesting comments on a potential bill.

The legislature appears to be moving forward deliberately however, and to date no hearings on the subject have been scheduled in either the House or Senate. As Congress once again builds an effort to pass comprehensive AV legislation, this blog will be following and providing updates.

One of the most persistent issues in public transportation is the so-called “last mile” problem. The essence of the problem is that, if the distance between the nearest transit stop and a rider’s home or office is too far to comfortably walk, potential riders will be more likely to drive than use public transit. The rise of smartphone enabled mobility options like ridesharing, bike-share, and e-scooters have been pitched as potential solutions to this problem. However, some cities have found that these technologies may create as many problems as they solve.

This post will focus in particular on the rise of e-scooters. Over roughly the last two years, e-scooters from companies like Bird and Lime have proliferated across American cities. Often appearing seemingly out of nowhere as companies frequently launch the product by dropping off a batch of scooters overnight without warning, they have been a source of angst for many city officials.

As the scooters spread, ridership has proliferated. Thanks to ease of use, the proliferation of smartphones, and increasing comfort with new forms of mobility, ridership has accelerated at a faster pace than ride-hailing apps, bikeshare programs, or other mobility platforms that have developed in recent years.

With this growth though has come challenges. In June, Nashville chose to ban e-scooters in the aftermath of the city’s first rider death. Last year, in response to concerns about safety and obstruction of sidewalks, Cleveland banned e-scooters. In the initial rollout period Cleveland was far from alone, as cities from St. Louis to San Francisco to Santa Monica also moved to ban or significantly reduce the number of scooters allowed.

Some of these bans, or at least use restrictions, may have been justified. Because they have no defined ports at which to be put away, scooters are often left blockading the sidewalk. At least 8 scooter riders have died in crashes, and users often remain confused about what laws apply to them and where they can ride. Hospitals across the country have seen a spike in emergency room visits related to scooter crashes, and the Centers for Disease Control has found that head trauma is the most common injury resulting from a scooter crash.

Slowly though, cities have begun experimenting with ways to let scooters in without letting them run wild. Last month Cleveland allowed scooters back in, with new limitations on where they are allowed to go and who is allowed to ride. Norfolk, VA recently contracted with e-scooter company Lime to allow them to have a local monopoly over scooter service in the city. The move may allow Norfolk greater control over how Lime operates within its borders, which could ultimately increase safety.

Given the obvious potential for e-scooters to increase mobility to parts of a city that aren’t within easy walking distance of transit stations, cities should continue working to find ways to allow them in while mitigating safety concerns. The results in cities like Norfolk and Cleveland that are working to introduce regulation to this new industry will be important to watch in the coming months.

In my previous posts, I have written a lot about city design and integrating emerging forms of transit, primarily automated vehicles, into the transportation landscape of a city. I am spending this summer in Washington, DC, and am getting an up-close look at this city’s transit options. I left my car behind for the summer, so for the first time in years, I am entirely reliant on public transportation, ridesharing apps, and my own feet to navigate the city. In the process, I have learned a few things that I plan to explore in more depth over the course of the summer. For now, here are the highlights:

1. Scooters do provide important transit for at least some people:

My house is about 0.6 miles from the bus line I take to work. So far, I have walked to that stop every morning. Along the way though, I see people riding by on scooters between the metro or bus station and their homes. It may yet be the case that scooters are a passing fad, and for now they appear – at least anecdotally – to have been adopted primarily by younger people. And to be sure, regulating them has been controversial in cities across the nation, which I plan to address in a coming post. For now though, they do show promise as a “last-mile” transit option for people who prefer not to drive.

2. A wide range of transit options improves access and reliability:

I ride the bus to and from work every day. When I want to explore the city on weekends, I take the metro downtown. I was running late to meet a friend the other day, and got an Uber. Others use scooters or the city’s bike-share program to get where they need to go. All of these options will work better or worse for different people, and for different purposes. All of them operating together can create a more functional, accessible transit system that serves the entire city.

3. Walkable neighborhoods ease the burden on a city’s transit system:

I live in a neighborhood with a grocery store, a Target, and a handful of bars and restaurants within a few blocks radius. As a consequence, I can walk just about everywhere I have to go except my office. Later this summer, I plan to explore ways in which cities can encourage development of walkable neighborhoods, thus easing the burden on overtaxed public transit systems and reducing the use of personal cars in the long run.

4. Affordable housing is directly linked to transit equity:

Perhaps this goes without saying, but a good, comprehensive transit network within a city does little good for the people who cannot afford to live in that city. This week, I’ve spoken with a couple people in my office who live an hour outside the city because it’s more affordable than living here. They drive to the farthest out metro stations, park there then ride into the city. To be sure, this still reduces congestion within the city. But good, reliable public transit is primarily important for the quality of life, cost savings, and environmental benefits that come with reduced use of personal automobiles and shorter commutes. People who have to commute a long way to even get to the public transit system in the city where they work are largely left out of those benefits.

As we move towards a future of fully automated vehicles, the types of crime – and attendant need for criminal enforcement – committed with cars is likely to evolve. As our transit system becomes more automated, the danger of a hack, and the difficulty of discovering the crime through ordinary policing tactics, is likely to increase. Some experts have expressed concerns that automated vehicles would be just as easy to use for delivery of drugs or guns as for more innocuous packages. Others, such as Duke University professor Mary Cummings, say that vehicles are too easy to hack and steer off course.

Going beyond relatively ordinary crimes such as theft, an unclassified FBI report obtained by The Guardian revealed the agency’s concern that autonomous vehicles could be commandeered and utilized as a “potential lethal weapon” or even self-driving bomb.

The likelihood that automated vehicles will generally obey the traffic laws complicates the ability of police to find crimes being committed with these vehicles using traditional methods. As I have written previously, traffic stops prompted by minor violations are a point of contact at which cops often look for evidence of more serious crime. While there is some hope that a reduction in such stops may reduce racial bias in policing, it also highlights the need for law enforcement to reduce dependence on this method of tracking serious crime.

While the potential for criminal activity or even terrorism using automated vehicles is a real possibility, some experts are less concerned. Arthur Rizer, from the conservative think tank R Street Institute, argued that the lives saved by adoption of driverless technology will far outweigh any risk of criminal or terror threat from a hacking. Rizer calls the risk “minute compared to the lives that we will save just from reducing traffic accidents.”

If a significant portion of the roughly 40,000 traffic fatalities per year can be prevented by the adoption of automated vehicles, Rizer is likely correct that the benefits will outweigh any risk that vehicles will be hacked by bad actors. Nevertheless, there is a possibility that, as CalTech professor Patrick Lin warns, automated vehicles “may enable new crimes that we can’t even imagine today.” Going forward, it will be important for law enforcement to develop new techniques of tracking crime facilitated by automated vehicles.

A couple weeks ago, I wrote a post outlining the fledgling legal efforts to address the increasingly urgent privacy concerns related to automated vehicles. While Europe’s General Data Privacy Regulation and California’s Consumer Privacy Act set a few standards to limit data sharing, the US as a whole has yet to seriously step into the field of data privacy. In the absence of national regulation in the United States, this post will look at an industry created standard. The auto industry standard is important not only for its present-day impact on how auto companies use our personal information, but also for the role it is likely to play in influencing any eventual Congressional legislation on the subject.

In 2014, two major industry trade associations – the Alliance of Automobile Manufacturers and the Association of Global Automakers collaborated to create a set of guiding principles for collection and management of consumer data. These twenty automakers, including the “Big Three” in the US and virtually every major auto company around the globe, created a list of seven privacy protection principles to abide by in the coming years.

In the list, two of the principles are somewhat well fleshed out: transparency and choice. On transparency, the automakers have pledged to provide “clear, meaningful information” about things like the types of information collected, why that information is collected, and who it is shared with. For certain types of information, primarily the collection of geolocation, biometric, or driver behavior information, the principles go one step further, requiring “clear, meaningful, and prominent notices.”  When it comes to choice, the industry says that simply choosing to use a vehicle constitutes consent for most types of data collection. Affirmative consent is sometimes required when geolocation, biometric or driver behavior data is shared, but that requirement contains several important exceptions that allow the automaker to share such data with their corporate partners.

The remaining five: respect for context; data minimization, de-identification and retention; data security; integrity and access, and; accountability may serve as important benchmarks going forward. For now, each of these five points contains no more than a handful of sentences pledging things like “reasonable measures.”

These industry-developed privacy protection principles are, for the most part, still pretty vague. The document describing all seven of them in-depth runs a mere 12 pages. In order for the standards to be truly meaningful, much more needs to be known about what constitutes reasonable measures, and in what sorts of situations geolocation, biometric, or driver behavior data can be shared. Furthermore, consumers should know whether the automaker’s corporate partners are bound by the same limits on data sharing to which the manufacturers have held themselves.

Without more detail, it is unclear whether these principles afford consumers any more protections than they would have otherwise had. They are important nonetheless for two reasons. They show that the industry at least recognizes some potential problems with unclear data-sharing rules, and they will likely play a key role in the development of any future legislation or federal regulation on the topic.

For the past several months, this blog has primarily focused on new legal questions that will be raised by connected and automated vehicles. This new transportation technology will undoubtedly raise novel concerns around tort liability, traffic stops, and city design. Along with raising novel problems, CAVs will also add new urgency to longstanding legal challenges. In some ways, this is best encapsulated in the field of privacy and data management.

In recent decades, the need to understand where our data goes has increased exponentially. The smartphones that most of us carry around every day are already capable of tracking our location, and recording a lot of our personal information. In addition to this computer/data generation machine in our pockets, the CAV will be a supercomputer on wheels, predicted to generate 4,000 gigabytes of data per day. Human driven vehicles with some automated features, such as Tesla’s with the company’s “Autopilot” functionality, already collect vast amounts of user data. Tesla’s website notes that the company may access a user’s browsing history, navigation history, and radio listening history, for example.

In response to this growing concern, California recently passed a sweeping new digital privacy law, set to take effect in 2020. Nicknamed “GDPR-Lite” after the European Union’s General Data Protection Regulation, California’s law “grants consumers the right to know what information companies are collecting about them, why they are collecting that data and with whom they are sharing it.” It also requires companies to delete data about a customer upon request, and mandates that companies provide the same quality and cost of service to users who opt out of data collection as those who opt in.

In comparison to the GDPR, California’s law is relatively limited in scope. The California Consumer Privacy Act (CCPA) is tailored to apply only to businesses that are relatively large or that are primarily engaged in the business of collecting and selling personal data. Furthermore, CCPA contains few limitations on what a business can do internally with data it collects. Instead, it focuses on the sale of that data to third parties.

In many ways, it remains too early to evaluate the effectiveness of California’s approach. This is in part because the law does not take effect until the beginning of next year. The bill also enables the California Attorney General to issue guidance and regulations fleshing out the requirements of the bill. These as-yet-unknown regulations will play a major role in how CCPA operates in practice.

Regardless of its uncertainties and potential shortcomings though, CCPA is likely to play a significant role in the future of American data privacy law and policy. It is the first significant privacy legislation in the US to respond to the recent tech boom, and it comes out of a state that is the world’s fifth largest economy. CCPA’s implementation will undoubtedly provide important lessons for both other states and the federal government as they consider the future of data privacy.

Earlier this month, the Journal of Law and Mobility hosted our first annual conference at the University of Michigan Law School. The event provided a great opportunity to convene some of the top minds working at the intersection of law and automated vehicles. What struck me most about the conference, put on by an organization dedicated to Law and mobility, was how few of the big questions related to automated vehicles are actually legal questions at this point in their development.

The afternoon panel on whether AVs should always follow the rules of the road as written was emblematic of this juxtaposition. The panel nominally focused on whether AVs should follow traffic laws. Should an automated vehicle be capable of running a red light, or swerving across a double yellow line while driving down the street? Should it always obey the posted speed limit?

The knee-jerk reaction of most people would probably be something along the lines of, “of course you shouldn’t program a car that can break the law.” After all, human drivers are supposed to follow the law. So why should an automated vehicle, which is programmed in advance by a human making a sober, conscious choice, be allowed to do any differently?

Once you scratch the surface though, the question becomes much more nuanced. Human drivers break the law in all kinds of minor ways in order to maintain safety, or in response to the circumstances of the moment. A human driver will run a red light if there is no cross-traffic and the car bearing down from behind is showing no signs of slowing down. A human will drive into the wrong lane or onto the shoulder to avoid a downed tree branch, or a child rushing out into the street. A human driver may speed away if they notice a car near them acting erratically. All of these actions, although they violate the law, may be taken in the interest of safety in the right circumstances. Even knowing they violated the law, a human driver who was ticketed in such a circumstance would feel their legal consequence was unjustified.

If automated vehicles should be able to break the law in at least some circumstances, the question shifts – which circumstances? Answering that question is beyond the scope of this post. At the moment, I don’t think anyone has the right answer. Instead, the point of this post is to highlight the type of moment-to-moment decisions every driver makes every day to keep themselves and those around them safe. The rules of the road provide a rough cut, codifying what will be best for most people most of the time. They could not possibly anticipate every situation and create a special legal rule for that situation. If they tried, the traffic laws would quickly grow to fill several libraries.

In my view, the question of whether an AV should be able to break the law is only tangentially a legal question. After arriving at an answer of, “probably sometimes,” the question quickly shifts to when, and in what circumstances, and whether the law needs to adapt to make different maneuvers legal. These questions have legal aspects to them, but they are also moral and ethical questions weighted with a full range of human driving experience.  Answering them will be among the most important and difficult challenges for the AV industry in the coming years.

The common story of automated vehicle safety is that by eliminating human error from the driving equation, cars will act more predictably, fewer crashes will occur, and lives will be saved. That future is still uncertain though. Questions still remain about whether CAVs will truly be safer drivers than humans in practice, and for whom they will be safer. In the remainder of this post, I will address this “for whom” question.

A recent study from Benjamin Wilson, Judy Hoffman, and Jamie Morgenstern at Georgia Tech found that state-of-the-art object detection systems – the type used in autonomous vehicles – demonstrate higher error rates in detection of darker-skinned pedestrians as compared to lighter-skinned pedestrians. Controlling for things like time-of-day or obstructed views, the technology was five percentage points less accurate at detecting people with darker skin-tones.

The Georgia Tech study is far from the first report of algorithmic bias. In 2015, Google found itself at the center of controversy when its algorithm for Google Photos incorrectly classified some black people as gorillas. More than two years later, Google’s temporary fix of removing the label “gorilla” from the program entirely was still in place. The company says they are working on a long-term fix to their facial recognition software. However, the continued presence of the temporary solution several years after the initial firestorm is some indication either of the difficulty of achieving a real solution or the lack of any serious coordinated response across the tech industry.

Algorithmic bias is a serious problem that must be tackled with a serious investment of resources across the industry. In the case of autonomous vehicles, the problem could be literally life and death. The potential for bias in automated systems begs for an answer to serious moral and legal questions. If a car is safer overall, but more likely to run over a black or brown pedestrian than a white one, should that car be allowed on the road? What is the safety baseline against which such a vehicle should be judged? Is the standard, “The AV should be just as likely (hopefully not very likely) to hit any given pedestrian?” Or is it “The AV should hit any given pedestrian less often than a human driven vehicle would?” Given our knowledge of algorithmic bias, should an automaker be opened up to more damages if their vehicle hits a black or brown pedestrian than when it hits a white pedestrian? Do tort law claims, like design defect or negligence, provide adequate incentive for automakers to address algorithmic bias in their systems? Or should the government set up a uniform system of regulation and testing around the detection of algorithmic bias in autonomous vehicles and other advanced, potentially dangerous technologies?

These are questions that I cannot answer today. But as the Georgia Tech study and the Google Photos scandal demonstrate, they are questions that the AV industry, government, and society as a whole will need to address in the coming years.

In the coming decades, advancing technology is likely to strain many tried-and-true legal concepts.  The tort law cause of action for design defects is likely to be among the most impacted. This post will explore the current understanding of design defect claims, and highlight areas where autonomous vehicles and other highly complex technologies will likely lead to a rethinking of the doctrine.

As outlined in the Third Restatement of Torts, design defect claims can be brought against a manufacturer when “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design . . . and the omission of the alternative design renders the product not reasonably safe.” Essentially, plaintiffs who bring a design defect claim after being harmed by a product bear the burden of showing that the product was designed unreasonably for its intended use, and that an alternative design would have been safer for the user and reasonable for the manufacturer to adopt.

Traditionally, courts have adopted one of two tests to determine the reasonableness of a product design under these claims. Under the consumer expectations test, the key question is whether a product performed up to the level at which an ordinary consumer would expect. Because this test is based on the expectations of an ordinary consumer (one who is presumed to not have any special knowledge about the product), a claim can be successful without any expert testimony about the alleged design failure, as in McCabe v. American Honda Motor Corp.

Alternatively, many courts have adopted the risk-utility test for proving a design defect. The risk-utility test is more akin to cost-benefit balancing. The South Carolina Supreme Court in Branham v. Ford Motor Co. noted that the risk-utility test balances “numerous factors . . . including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger.” As this test requires testimony on cost of the current design and any proposed alternatives, it will require expert testimony and specialized knowledge, unlike the consumer expectations test.

Some have made the case that the consumer expectations test will be inadequate to address claims of design defect in complex technologies such as autonomous vehicles. After all, the argument goes, how could an ordinary consumer possibly have a realistic expectation of how an autonomous vehicle is supposed to perform in a given situation? Any given action by an AV is the result of a series of algorithms that is being constantly updated as the car gathers new information about the world around it. Should a consumer expect the AV to act just as a human would act? Should it be more cautious? Or perhaps even take actions that would seem overly risky for a human driver, because the AV system was certain of what every step in its maneuver would look like going in? How could a human passenger know? If courts are persuaded by these concerns, they will likely need to address them by adopting the more expert-reliant risk-utility test.

On the other hand, some scholars argue that the consumer expectations test is perfectly adequate to handle claims involving advanced technology such as AVs. In a recent article, NYU Law Professor Mark Geistfeld notes that consumers need not understand the intricacies of how a technology works in order to have “well-formed expectations of the product performance.” Under Geistfeld’s approach, a consumer either should have such a well-formed expectation or, in the case where they have yet to develop one, should be warned by the manufacturer or dealer in such a way as to make them aware of the risk they are taking on.

It remains to be seen how design defect claims will be forced to evolve as autonomous vehicles come on the scene. Like many areas of law though, this is a field that will be stressed, and potentially forced to evolve, by the advent of this revolutionary technology.

After introducing a discussion of mobility justice last week, I planned to highlight a few cities that were doing particularly well at enabling transit equity across racial or economic lines in their cities. While I did not expect to find many cities excelling across the board, I hoped to find some places with best practices that could be used as models along one dimension or another of mobility justice.

What I found instead is that to date, no metrics exist that appear to capture the full picture of mobility justice without leaving out significant elements of the challenge. 

For instance, 99% of San Francisco’s population lives within half a mile of public transit. In one sense, this is a positive development, as a city cannot have accessible transit options unless those options physically travel near people’s homes. However, other authors have pointed out that high housing costs have driven many of the most vulnerable communities in the San Francisco metro area beyond city limits, where transit options become sparser. Furthermore, the fee structure of San Francisco’s public transit can serve to make mobility unaffordable for low-income riders. The region has recognized transit equity as a problem, creating the Bay Area Equity Analysis Report to explore ways to improve access to transit across the region. The report includes proposals such as a region-wide reduced fare pass and a simplified process to apply for reduced fares. Both proposals appear to be positive steps. Their effectiveness at improving access to transit must be evaluated in the coming years.

New York’s subway system is by far the busiest in the nation. Virtually the entire city has either subway or bus service near their home, and the city’s buses and subways provide roughly 7.7 million rides per day. However, the high usage rate is straining the system. In recent decades New York’s subway has been chronically underfunded, and thus subject to increasing delays and needs for repair that limit its usefulness for many city residents. Furthermore, it is unclear how much even a fully functional New York subway could serve as a model for other cities. New York is among a limited number of American cities that grew up before the rise of the automobile. As such, it is more compact as a whole, and its transit system was able to grow with the city in a way that would not be the case for the more sprawling cities investing more heavily in transit in recent years.

A recent study by Greg Griffin and Ipek Nese Sener from the Texas A&M Transportation Institute analyzed transit equity in nine major metro areas across the nation. The authors found that cities like Atlanta and Los Angeles, which have an integrated system of both bus and rail service, are among the most equitable in the nation. However, they cautioned that their study focused primarily on access across incomes, rather than overall access. A city such as Atlanta “may rank low on overall accessibility while doing well in terms of equity by income. Of course, lower transit accessibility overall will undoubtedly impact low-income communities more than others. While their research did not account for such issues, the development of a metric to study transit equity is a valuable contribution to the mobility justice conversation.

On the whole, no city in America is a great model of mobility justice. This is perhaps unsurprising, considering that mobility justice involves the interaction of a wide range of factors such as pricing, changing housing patterns, and planning of effective combinations of rail, bus, bikeshare, and other programs. In each city, adequately meeting this challenge will require significant local engagement with the most impacted communities, and a constant willingness to adapt their system. Plans such as the Bay Area’s Equity Analysis Report are a step in the right direction. As automated vehicles and other new forms of transportation emerge, cities need to be especially attentive to their impacts on marginalized communities.

Whenever connected and autonomous vehicles are considered, some people envision a mobility paradise. They see current parking areas making way for more productive buildings or green space, pedestrians and cyclists sharing the roads with vehicles that can seamlessly respond to every move, and a dramatic decrease in traffic fatalities. Such visions are behind much of the push towards autonomous vehicles, and the hands-off regulatory approaches I’ve written about before in states like Arizona.

Grand visions of the future of mobility frequently focus on socioeconomic segments of our society from the middle class up. This focus is rarely stated explicitly. However, it is generally assumed that autonomous vehicles will be hailed with a smartphone. Major beneficiaries of the CAV revolution will be information sector employees who could work from a laptop during their commute. Reuse of space currently dominated by parking is primarily an issue for affluent downtown business districts. While CAVs could ease transportation for many people, it is important that affirmative steps be taken to ensure access to adequate transportation for poor and minority communities in the new world we are building.

The advent of CAVs would not be the first time a new transportation technology has left disadvantaged communities behind. The rise of the personal automobile led to a transportation boom for the middle class, while many poor neighborhoods were forgotten or paved over to facilitate the creation of new highways. Many poor and minority communities today are in “transit deserts,” areas of a city with high demand for public transportation but poor service.

Some of the problems stemming from past transportation shifts were borne of malice. The history of redlining and efforts to design cities in such a way as to keep minority communities segregated from middle and upper-class white residents is well documented. Much of the problem may have also been simple negligence. People with disposable income, cars, and cell-phones are better able to make their voice heard in corridors of power. Without an active effort to reach out to other parts of their constituency, government officials may only hear the needs of those with the means to participate.

There are early signs that cities are considering how to make new transit systems accessible by the whole community. While light on detail, a recent document from the National Association of City Transportation Officials lists “mobility for the whole city” as a key principle of the coming urban transportation environment. The World Bank has noted the importance of transit opportunities to the economic prospects of impoverished city-dwellers. To follow up on that high-minded vision, city leaders will need to not only engage the usual stakeholders and governmental departments, but the entirety of the effected community. Mayors, council members, and planners must actively reach out to poor and minority communities to discuss their transportation needs, and develop concrete plans. Such outreach may not be easy, particularly given the need to account for the time constraints of people who work multiple jobs or lack disposable income. It is the type of work that is necessary though if the CAV revolution is to fulfill its potential for all of a city’s people.

Americans have traditionally had an understandable skepticism towards government collection of our data and monitoring of our private communications. The uproar caused by the Snowden leaks in 2013 was followed by increased public attention to data privacy. In a 2014-15 survey, 57% of respondents said that government monitoring of the communications of US citizens was unacceptable. Over 90% of respondents found it important to be able to personally control what data about them was shared, and with whom. The public has expressed similar concerns about data-sharing among private companies. Nearly 2/3 of Americans say that current laws do not go far enough to protect their privacy, and would support increased regulation of advertisers.

Limitations on government collection of private data are built into the Fourth Amendment, as applied to collection of digital data in Carpenter. But there is no analogous limitation on the ability of corporations to share our data far and wide, as anyone who has seen a targeted Facebook ad pop up minutes after searching for an item on Amazon knows. Indeed, First Amendment cases such as Sorrell v. IMS Health, in bolstering protections for commercial speech, may significantly restrict the ability of Congress to regulate private companies selling our data amongst themselves. While many targeted ads can make data sharing seem harmless (I see you just bought a watch. Perhaps I can interest you in these 73 similar watches?), at times it may be more nefarious. 

Public unease with data sharing may be especially warranted in the case of mobility data. The majority of Americans move about the world in cars. While many of those trips are innocuous, some may be trips to an unpopular church, to the home of a secret paramour, or to the scene of a crime. Even the innocuous trips may be simply embarrassing (maybe you ate at a fast food restaurant a few more times than you should have, or fibbed to your spouse once or twice about working late when you were actually getting an after-work drink with friends). These are the type of excursions that, if your car were continuously collecting data on its whereabouts, could easily be sold to a private actor that would be willing to use it against you.

The concern that a private company could abuse access to your personal data just as easily as the government has led legal scholar Jeffrey Rosen to propose a new Constitutional amendment. Such affronts to dignity, as Rosen describes this all-consuming data collection and sale, are problematic enough that we need an amendment to bar unreasonable searches and seizures by either the government or a private corporation. Mercatus Center Senior Research Fellow Adam Theirer has argued that Rosen’s proposal is ill-advised, but still supports making it easier for consumers to restrict access to their private data.

Under current doctrine, the path to heightened protections from abuse of our personal data by private companies is unclear. In Carpenter, the Court took account of the changing nature of technology to limit the government’s ability to collect our information from corporations under the Fourth Amendment. Going forward, the Court should bear in mind the public’s desire for privacy, and the increasing prominence of data collection companies such as Google, Amazon, and soon, CAV operators. As in Carpenter, they should adjudicate with changing technology in mind, and seek to enable Congress’ ability to legislate limits on the ability of private companies to sell our personal data.

Recently, I wrote about the prospects for federal legislation addressing connected and autonomous vehicles. While the subject will be taken up in the new Congress, the failed push for a bill at the end of 2018 is an indication of the steep hill any CAV legislation will have to overcome. Despite the lack of federal legislation, the Department of Transportation (DOT) has been active in this space. In October 2018, the Department issued Preparing for the Future of Transportation: Automated Vehicles 3.0, DOT’s most comprehensive guide to date outlining their plan for the roll-out of CAVs. The document indicates that the department expects to prioritize working with industry to create a set of voluntary safety standards over the development of mandatory regulations.

Given the Trump administration’s broad emphasis on deregulation as a driver of economic growth, this emphasis on voluntary standards is unsurprising. A handful of consumer groups focused on auto safety have raised the alarm over this strategy, arguing that mandatory regulations are the only way to both ensure safety and make the general public confident in automated driving technology.

The remainder of this post will discuss the effectiveness of voluntary safety standards relative to mandatory regulation for the CAV industry, and consider the prospects of each going forward. While little information is available about the response to either option in the CAV field, I will seek to draw lessons from experience with regulation of the traditional automobile industry.

The National Highway Transportation Safety Administration (NHTSA) has undergone a dramatic strategic shift over its half-century existence. In its early days, NHTSA was primarily devoted to promulgating technology-forcing regulations that sought to drive innovation across the industry. Jerry Mashaw and David Harfst have documented the agency’s shift away from adopting regulations in favor of an aggressive recall policy for defective products in the 1980s. As they write, the agency then returned to a regulatory policy in the 21st century. However, rather than attempt to force technology, they chose to mandate technologies that were already in use across most of the auto industry. While these new standards still took the form of mandatory regulation, they operated as virtually voluntary standards because they mandated technologies the industry had largely already adopted on its own. Mashaw and Harfst found that this shift was essentially a trade-off of slower adoption of new safety technology, and potentially lost lives, in favor of greater legitimacy in the eyes of the courts and industry. Particularly given the rise of pre-enforcement judicial review of regulations, this shift may be seen as a defensive mechanism to allow more regulations to survive court challenges.

Even as NHTSA has pulled back from technology forcing regulations, there has been no sustained public push for more aggressive auto safety regulation. This may be because the number of traffic fatalities has been fallen slightly in recent decades. This shift is likely due more to a reduction in drunk driving than improved technology. With studies showing that the public is particularly wary of CAV adoption, it remains to be seen whether NHTSA will seek to return to its technology-forcing origins. While the auto industry has traditionally preferred voluntary adoption of new technologies, it may be the case that government mandates would help ease public concern about CAV safety, speed the adoption of this new technology, and ultimately save lives.

No matter how you get to work, chances are you’ve spent at least a handful of hours frustrated by the commute. At some point, construction, poor weather, or simply congested roadways have taken valuable hours from all of our days. Given the constant annoyance of bad traffic, it is unsurprising that people get excited about any technology that may reduce the problem. Such was at least part of the hope for ridesharing technologies like Uber and Lyft.

To date, that hope has been at least premature, if not misplaced entirely. Recent studies have shown that the introduction of Uber and Lyft to a city actually increases traffic. A study by transportation analyst Bruce Schaller found that popular ridesharing apps were responsible for 51% of the increase in traffic in San Francisco between 2010 and 2016. Results in other major metro areas were similar.

The increased traffic appears to be primarily attributable to two things. First, rideshare drivers spend around 40% of their road time between passengers, merely taking up space on the road without moving customers where they want to go. Second, Schaller’s research suggests that the convenience of ridesharing has increased the total number of trips taken. He finds that 60% of trips taken with rideshare apps replace trips for which people would have either taken public transit, biked, walked, or simply not made the trip. Uber and Lyft dispute some of Schaller’s methods, arguing that he does not adequately account for factors like increased tourism and freight delivery as causes of increased congestion.

Even if some of the companies’ criticisms are valid, the challenges of passenger-less rideshare vehicles and rideshare trips replacing non-car travel are almost certainly both real. It is possible that, as Uber, Lyft, and others collect more data about patterns of mobility, they will be able to effectively limit the amount of time their cars are on the road with no passengers. By contrast, increased traffic due to rideshare replacement of non-car travel will not be abated by the companies alone. Their incentives align with reducing the amount of time drivers have no passenger in the car, but not with ceding a share of their market to public transit or other modes of transportation.

The challenge of rideshare trips replacing non-car travel will require affirmative government action to overcome. Broadly, cities may take one of two paths, or a combination of both. First, they can design their infrastructure and public transit systems in such a way as to make walking or public transportation a more attractive option for the individual consumer than a solo car trip. Second, they may choose to limit the number of rideshare vehicles allowed on the road. Such a program would be similar to the grant of a set number of taxi medallions. Some cities, such as Chicago, have begun charging a tax on Uber and Lyft rides specifically to help fund improved public transportation. Such a scheme may enable the city to keep its other transit options competitive with rideshare and reduce overall traffic congestion.

To date, the growth of Uber and Lyft present a cautionary tale for tech optimists. On one hand, the growth of these companies has presented riders with a convenient way to travel, and has enabled some people to forgo owning their own car. However, there is evidence that the explosion of vehicles on the road has dramatically increased traffic congestion in the nation’s largest cities. While some of the traffic problems may be solved as the companies continue to collect data, it will likely take affirmative action by local governments to make other transportation options more compelling and abate the worst of the traffic problem.

To date, twenty-nine states have enacted legislation related to connected and autonomous vehicles (CAVs). Eleven governors have issued executive orders designed to set guidelines for and promote the adoption of CAVs. In response to this patchwork of state laws, some experts have argued that the federal government should step in and create a uniform set of safety regulations.

Partially responding to such concerns, the National Highway Traffic Safety Administration (NHTSA) issued A Vision for Safety 2.0 in September, 2018. The guidance document contains voluntary guidance for the automotive industry, suggesting best practices for the testing and deployment of CAVs. It also contains a set of safety-related practices for states to consider implementing in legislation.

The NHTSA document is likely to have some effect on the development of safety practices for the testing and deployment of automated vehicles. While not mandatory, the guidance does give the industry some indication of what the federal government is thinking. Some companies may take this document as a sign of what they will be required to do if and when the Congress passes CAV legislation, and begin to prepare for compliance now. Furthermore, this nudge from the federal government could influence state action, as legislators with limited expertise on the subject look to NHTSA for guidance in drafting their CAV bills.

Without new legislation however, the force of NHTSA’s guidance will be blunted. No manufacturer is required to follow the agency’s views, and state legislatures are free to continue passing conflicting laws. Such conflicts among states could make it difficult to design a vehicle that is able to meet all state standards and travel freely throughout the country. To date, this has not been an acute problem because CAVs, where they are deployed, operate only within a tightly limited range. As use of these vehicles expands however, uniform standards will begin to appear more necessary.

A late push for CAV legislation in the last Congress petered out in the December lame duck session. After unanimously passing the House in 2017, the bill stalled when Senate Democrats balked at what they saw as its lack of sufficient safety protections. With Congress’ schedule blocked by the government shutdown, CAV legislation has been put on the back burner so far in 2019. At some point though, Congress is likely to take up a new bill. The Senators who were key drivers of the CAV bill in the past Congress, Gary Peters (D-MI) and Jon Thune (R-SD) remain in the Senate. Both Senators retain their influential positions on the Committee on Commerce, Science, and Transportation. The key change from the previous Congress will be the dynamic in the newly Democratic-controlled House. While a bill passed unanimously last term, it remains to be seen whether the new House will be held back by the same consumer safety concerns that led the Senate to reject the bill last term.

As autonomous vehicle technology continues to march forward, and calls for a uniform nationwide regulatory system are expected to grow. We will be following major developments.

Welcome to 2019! Over the past several months, this page has focused a lot on deployment of connected and autonomous vehicles (CAVs) in US cities. 2018 was indeed a big year for CAVs in the United States. The vehicles were deployed commercially in Arizona, California began to allow testing of the technology without a safety driver, and policymakers and urban planners across the nation thought seriously about how to integrate CAVs into their existing transportation grid.

Running through much of this work is the fear that, if left unchecked, wide-scale deployment of CAVs will kick off an accelerated version of the problems associated with the initial popularization of the automobile – suburban sprawl, increased congestion, deeper economic inequality, and more. Most American cities have proposed addressing these issues – to the extent they have considered them at all – through modest incentive programs. To kick off the new year, I want to briefly examine a city that has taken a much more aggressive tack on curtailing the problems associated with sprawl and traffic.

Even before the widespread adoption of CAVs, Singapore is moving beyond modest incentives to combat congested roads. The city of nearly 6 million people charges commuters nearly $15,000 per year to own a vehicle and use it during rush hour. In 2017, Singapore took the extreme step of announcing a freeze in the growth rate of private car ownership. While such measures seem exorbitant from an American perspective, they have contributed to reduced congestion. Singapore in 2015 was less congested than the year before, and suffered less congestion than cities such as New York, London, or Beijing. Only around 11% of Singapore’s population owns a car, in comparison to 46% of New York City residents and nearly 90% of Angelenos.

The city is also taking steps to prepare for a future dominated by CAVs. Singapore recently removed a requirement that cars have human drivers, and has mandated that all new development meets standards that accommodate CAVs while discouraging car ownership. These new real estate requirements include narrow streets, road markings designed to be easily recognizable by CAVs, and fewer parking spaces.

Such aggressive maneuvers are out of sync with policy across the United States. Many US cities have created carpool lanes to encourage ride-sharing, and Oregon has experimented with a per-mile charge to reduce congestion and plug infrastructure funding gaps that have traditionally been filled with a gas tax. However, such programs have typically been modest. Perhaps most strikingly, in comparison to Singapore’s large yearly fees, the average annual tax levied on vehicle ownership in the US comes in at a little over $200.

In many parts of the US, abundant cheap land and low vehicle taxes set the stage for suburban sprawl and maddening levels of congestion brought on by the first automobile revolution. The same factors are aligned to accelerate these problems in the upcoming CAV revolution. None of this is to say that the Singaporean approach is right for the US. It is certainly possible that, as CAVs are deployed nationwide, their benefits will outweigh any social cost brought on by sprawl and congestion. When setting their own policy though, our cities should examine a full range of options, including places like Singapore that are modeling a more aggressive regulatory posture. Regardless of the approach we choose to take, there are valuable lessons to learn from countries that approach these challenges from a different governance tradition.

I’ve written in recent weeks about the impact of autonomous vehicles on city design. Choices made by both city planners and CAV operators in the coming decades will play key roles in determining whether our new transportation paradigm is one of compact, walkable cityscapes that accommodate traffic of all sorts, or one that spurs increased suburban and exurban sprawl and is truly designed only with car transport in mind. One particularly important aspect of this question is to what extent CAVs will integrate with current mass transit rather than attempt to replace it.

Some companies, such as Ann Arbor based May Mobility,are purposely seeking out opportunities to integrate with local transit. The company recently contracted with Columbus, OH to begin operating their CAVs on a short loop through downtown along the Scioto River. A small-scale project like this has the potential to improve traffic flow in the central city without incentivizing people to move ever farther away from the urban core. A deal was also announced between May and the state of Rhode Island to run autonomous shuttles that will connect public transit lines in the nearby cities of Providence and Olneyville.

Its certainly possible that May’s long-term ambitions are bigger. They may hope to use their autonomous technology to compete with companies like Ford, Waymo and Uber to provide people with a primary mode of transportation. For now though, services like this should be viewed as a model for cities seeking to promote vibrant urban centers.

Many cities across the country, even those without longstanding strength in public transit, have already committed serious resources to revitalizing and maintaining their urban cores. Kansas City is planning a roughly $300 million extension of an existing light rail line. Phoenix, which first opened its light rail line ten years ago, passed a ballot initiative in 2015 to raise new funds fora 66-mile expansion of the system. And public transit is not supported only by public money. In South Florida, a privately owned, high speed commuter train recently opened to carry passengers between Miami, Fort Lauderdale, and West Palm Beach.

Cities investing so heavily in large-scale public transit certainly have a demonstrated interest in the economic development that comes with urban revitalization. Furthermore, they see transportation as a key factor in spurring renewed growth. If these localities are not careful though, they may see their careful plans laid to waste by the onset of CAVs. In the post-WWII era, the dominance of the automobile contributed to the emptying out of city centers and the paving over of vast swaths of land. Looking ahead, it’snot hard to see the rise of this new technology thwarting the plans of the most well-intentioned cities.

Those that hope to back up their commitment to public transit and sustainable living will need to think carefully about how transportation technologies should be accommodated. For now, the May Mobility model may be attractive for its intentional compatibility with other forms of transit. Looking ahead, as CAVs become more advanced, such companies will likely move to take over more of the transportation market. Cities need to be aware of that possibility and consider how to design their infrastructure and transportation policies to integrate CAVs into existing plans, lest they betaken over by them.

California has become the second state in the nation to permit connected and automated vehicles (CAVs) to operate on public roads without a safety driver. With the recent announcement that Waymo has obtained approval to test driverless CAVs in a handful of Northern California communities, the state joins Arizona on the leading edge of the driverless vehicle revolution. Similar to the Arizona experiment, which I wrote about recently, California has positioned itself to play a key role in shaping the speed and direction of growth in the CAV industry.

California’s regulatory apparatus, while not without its critics, will provide an interesting contrast to the relatively lax system enacted by Arizona. The remainder of this post will explore the key differences between these two approaches to governance of CAVs.

Arizona requires merely that CAV operators submit written confirmation to the State that each vehicle complies with all relevant federal law, that it is capable of reaching a “minimal risk condition” when necessary, and that it be capable of complying with traffic and safety laws. California, by contrast, has a handful of more specific requirements. In addition to the need to comply with federal law, California requires that driverless CAV operators:

  • Notify local authorities in communities where testing will take place
  • Submit a law enforcement interaction plan
  • Certify that the vehicles meet the autonomous vehicle Level 4 or 5 definition of the Society for Automotive Engineers
  • Maintain a communication link between the vehicle and a remote operator
  • Inform the DMV of the intended operational design domain
  • Submit an annual disengagement report to the DMV
  • Submit collision reports to the DMV within 10 days of a crash

In addition to these requirements for driverless vehicle testing, California has a further set of requirements before driverless CAVs can be certified for public use. This supplemental set of requirements generally revolves around data recording and security against cyber-attacks.

Critics have argued that even California’s approach to CAVs is not safety conscious enough. Consumer Watchdog, a California public interest group, has raised an alarm that the state is merely taking Waymo’s word that it has met requirements “without any real verification.” The organization has also suggested that California’s regulations are not substantively strict enough, arguing that they are turning people “into human guinea pigs for testing [Waymo’s] robot cars.” Proponents though, argue that the safety concerns are overblown in light of the potential for vast improvements relative to error-prone human drivers.

While the debate over how much regulation is proper persists, it is notable how quickly California seems to be following in the footsteps of Arizona in the rollout of CAVs. One key argument in favor of Arizona’s light touch regulation is that it has positioned the state to take the lead in development of this new technology. California’s oversight, while not enough for some, is undoubtedly more rigorous than that of its neighbor to the east. Arizona’s approach does appear to have given the state a short head start in the CAV race. California’s progress, though, indicates that modest increases in state oversight may not present a substantial barrier to the adoption of this new technology.

CAVs and the Traffic Stop

The traffic stop has long been a primary point of interaction between police and the community. As consent Department of Justice (DOJ) investigations into local police departments in Ferguson, Baltimore, and Chicago made clear in recent years, they are also a moment that is open to large-scale abuse. The rise of connected and autonomous vehicles (CAVs) will fundamentally alter, and perhaps dramatically reduce the occurrence of, this common police tactic. In order to avoid replicating the problematic aspects of traffic stops, communities need to grapple with the ways in which their current system has failed, and how policing should look in the future.

Local police departments in at least some parts of the country have been found to use routine traffic stops as a fundraising tool for the city. Due to either implicit or explicit bias, such policies frequently have an outsized impact on minority members of the community. DOJs investigation of the Ferguson Police Department unearthed a city government primarily concerned with the use of traffic stops to “fill the revenue pipeline.” Particularly in light of decreased sales tax revenue, city officials saw the need to increase traffic citations as “not an insignificant issue.” This attitude filtered down from the City Council and Financial Director to line officers, who were regularly reminded of the need to increase “traffic productivity.” In Ferguson, demand that the police department be a revenue generation machine contributed to racial bias in the city’s criminal justice system. African American drivers were the subjects of 85% of the traffic stops, despite constituting only 67% of the population. Among those stopped, 11% of black drivers were searched, compared to only 5% of white drivers. While the Ferguson report throws the twin problems of racialized policing and use of the police for revenue generation into stark relief, the city is far from alone. The investigations in Baltimore and Chicago found similar abuses. A review of academic literature by researchers at Princeton found that “Blacks and Hispanics are more likely to be stopped by the police, convicted of a crime, and . . . issued a lengthy prison sentence” than similarly situated whites.

These findings highlight the centrality of the traffic stop to modern policing. Traffic stops not only lead directly to citations – for speeding, missing stop signs, and the like – but also to searches of individuals and vehicles that may lead to more serious crimes for things like possession of drugs or weapons. The importance of traffic stops has been spurred on by a Supreme Court that has given its blessing to pretextual stops, in which an officer can stop a car as long as there is a valid reason, regardless of their actual reason. Widespread use of CAVs, however, could seriously cut down on pretextual stops. If a CAV is programmed to travel no faster than the speed limit, to always signal turns, and to never run a red light after all, the number of available pretexts is significantly reduced. While many commentators have been hesitant to think that this shift will lead to large-scale shifts in police tactics or a significant reduction in abuses, they have at least highlighted that possibility.

While CAVs and other new technology may lead to a shift in police tactics, they alone will not eliminate, and may not even reduce, biased policing. Unless addressed through changes to underlying structures of taxation or spending, the financial imperative to turn the police force into a revenue generator will continue to drive over-policing of minor violations. Without addressing implicit bias, this over-policing will continue to disproportionately target minority communities. The CAV era may channel these pressures in new directions. But cities that wish to address the ongoing challenge of racially biased policing must initiate structural changes, rather than merely hope that technology will save them.

City design has long been shaped by modes of transportation. The transition is easy to spot as you move westward across America. Relatively compact eastern cities initially grew up in the 18th and 19th centuries, when people traveled by foot or by horse. Scattered across the plains, and particularly throughout the vast expanses of Texas and the Southwest, are cities filled with wide thoroughfares and sprawling suburbs, designed to match the rise of car culture. A large-scale shift to autonomous vehicle transportation will once again mold our cities in new ways. I wrote recently about this coming shift, focusing in particular on the reuse of space currently dominated by parking. This post will build on that theme by exploring the ways in which big data generated by new transportation technologies will guide city planners and business strategists in creating new urban environments.

Many cities already take advantage of more traditional forms of transportation data to improve urban planning. For example, analysis of population density and traffic patterns facilitated Moscow’s 50% increase in public transit capacity, which enabled the city to reduce driving lanes in favor of more space for pedestrians and cyclists. Looking to the future, New York University’s Center for Urban Science and Progress seeks to help cities harness the power of big data to “become more productive and livable.” Today, more data exists regarding our transportation habits than ever before. Ride-hailing services such as Uber and Lyft, along with the popularity of “check-in” apps such as Foursquare, have exponentially increased the amount of data collected as we go through our daily routines. The advent of CAVs, along with smaller scale technologies such as bike-share and scooter-share programs, will only accelerate this trend.

Currently, most of this data is collected and held by private companies. This valuable information is already being aggregated and used by companies such as Sasaki, a design firm that uses data from Yelp, Google, and others to help businesses and developers understand how their planned projects can best fit in with a community’s existing living patterns. The information is able to help businesses understand, on a block-by-block basis, where their target market lives, shops, and travels. As companies such as Uber and Waymo roll out fleets of autonomous vehicles in the coming years that collect data on more and more people, such information will increasingly drive business planning.

Just as this wealth of data is impacting business decisions, making it available to the public sector would mark a significant upgrade in the capabilities of urban planners. To be sure, granting the government easy access to such fine-grained information about our daily lives comes with its own set of challenges, which my colleague Ian Williams has explored in a previous post. From the perspective of planning utility however, the benefits are clear. By better understanding exactly what times and locations present the worst traffic challenges, cities can target infrastructure improvements, tollways, or carpool benefits to alleviate the problem. A more detailed understanding of which routes people take to and from home, work, shopping, and entertainment districts can allow for more efficient zoning and the development of more walkable neighborhoods. This type of improvement has the potential to improve the livability of city centers so as to guard against the danger that CAVs will facilitate a new round of exurban flight.

As with previous shifts in transportation, the widespread move to CAVs expected in the coming years will be a key driver of the future shape of our cities. Urban planners and business strategists will play a featured role in determining whether this technology ushers in a new round of sprawl, or facilitates the growth and attractiveness of metropolitan centers. The intelligent and conscientious use of data generated by CAVs and other emerging technologies can help fuel smart development to ensure that our downtown spaces, and the communities they support, continue to thrive.

 

Tesla’s enthusiastic marketing of its Autopilot feature may be landing the company in legal hot water. Last week, a Florida man sued the car manufacturer after his Model S crashed into a stalled vehicle at high speed. The driver, who allegedly suffered spinal and brain injuries, claims that Tesla’s “purposefully manipulative sales pitch” had duped him and other Tesla owners into the mistaken belief that their vehicles can travel on the highway almost without supervision. The outcome of the case may carry key lessons not only for Tesla, but for all automakers as they develop more autonomous features.

This isn’t the first time Tesla has faced legal challenges related to the Autopilot feature. In May, the company paid $5 million to settle a class action suit claiming its Autopilot 2.0 upgrade was unusable and dangerous. This case, while currently only involving one plaintiff, could have even broader ramifications. The plaintiff’s products liability suit claims that the company has systematically duped consumers through a “pervasive national marketing campaign.” If successful, this suit could open the door to recovery for others who crash while using Autopilot.

While Tesla has typically been more grandiose in their advertising techniques than more traditional automakers, their legal challenges do serve to highlight the struggles that auto manufacturers will face in the coming years. This year alone, Ford has packaged its driver assist features into a system called Co-Pilot 360 and GM has called its Super Cruise system “the world’s first true hands-free driver assistance feature for the freeway.” In the near future, other car manufacturers are expected to join these companies in developing ever more autonomous features.

As the auto industry collectively drives toward the creation of truly autonomous vehicles, there will be an understandable temptation to hype up every new technological feature. Arguably, many of these features will increase auto safety when used properly. Certainly, road testing such features is a key step on the path towards fully driverless cars. The challenges facing Tesla should serve as a warning though. Companies need to be cautious in describing their driver-assist technologies, and ensuring that customers understand the limits of such new features. Doing so will have the dual benefit of reminding drivers that they should still be in control of the vehicle, and shielding themselves from the type of liability Tesla faces today.

 

The rapidly approaching deployment of commercially available CAVs has led city planners to begin grappling with the ways in which this new technology is expected to shape our built environment.  A 2017 report from MIT’s Urban Economics Lab and Center for Real Estate, financed by Capital One, explores potential real estate changes driven by CAVs. The report describes two theories of what the effect will be. First, CAVs could reinforce demand for central city living by relieving congestion and need for parking, making cities more livable. Alternatively, they could lead to a new wave of suburbanization by increasing the distances people are willing to travel.

As much as CAVs will shape the future of cities though, design choices made by city planners today will also impact the ways in which CAVs are utilized. Cities that are designed primarily for drivers, with limited walkability and few public transit options, are likely to experience a rehash of all the problems with 20th century suburban sprawl: congestion, increasing infrastructure needs on the urban fringe, and a reduced tax base within city limits, to name a few. There are, however, affirmative steps that cities can take to disincentivize sprawl in favor of growth in the urban core. Two of these policy options, which I will discuss below, are smart pricing of vehicle travel and increased walkability of city centers.

Many cities have already taken steps to make solo trips in cars less attractive. Whether these policies take the form of increasing options for light rail and other public transportation, designating carpool lanes, or varying parking costs depending on the time of day, many of them may not be significantly altered by the arrival of CAVs. One change that could be facilitated by CAVs is the possibility for more fine-grained trip pricing. A city that is committed to reducing congestion could vary ride pricing for people who carpool, or for trips made outside of the heaviest use periods. Those hoping to incentivize public transit could provide reduced fares for “last mile” trips to and from light rail or bus stations.

The prevalence of CAVs will also provide cities an opportunity to rethink the design of their urban landscapes. Most American cities are dominated by parking, with 30% of the space in many downtown areas being taken up by parking spaces. This is unsurprising in light of the fact that the typical car is parked around 95% of the time. The rise of CAVs will provide cities with an opportunity to adapt much of this space to more productive use through business development, building downtown housing, and expanding green space. A key challenge here for cities will be in managing the transition. A study by the Regional Planning Association for New York, New Jersey and Connecticut found that land use planning is unlikely to be “permanently altered” by CAVs until 2040 and beyond. In the intervening years, cities can begin to take steps to plan for adaptive reuse of space. This includes such design choices as building parking garages with features that allow them to be easily converted into housing and considering zoning changes that will facilitate a more livable, walkable urban core.

CAVs have the potential to contribute to the continued revitalization of city centers through the creation of more resident-friendly downtowns, or to kickstart an accelerated urban sprawl. Smart, data-driven trip pricing and infrastructure designed to smooth the transitioning needs of cities can help guide the use of CAVs in ways that facilitate compact growth and walkable communities.

By the end of this year, Alphabet subsidiary Waymo plans to launch one of the nation’s first commercial driverless taxi services in Phoenix, Arizona. As preparations move forward, there has been increasing attention focused on Arizona’s regulatory scheme regarding connected and automated vehicles (CAVs), and the ongoing debate over whether and how their deployment should be more tightly controlled.

In 2015, Arizona Governor Doug Ducey issued an executive order directing state agencies to “undertake any steps necessary to support the testing and operation of self-driving vehicles” on public roads in the state. The order helped facilitate the Phoenix metro area’s development as a key testing ground for CAV technology and laid the groundwork for Waymo’s pioneering move to roll out its driverless service commercially in the state. It has also been the target of criticism for not focusing enough on auto safety, particularly in the aftermath of a deadly crash involving an Uber-operated CAV in March.

As the technology advances and the date of Waymo’s commercial rollout approaches, Governor Ducey has issued a new executive order laying out a few more requirements that CAVs must comply with in order to operate on Arizona’s streets. While the new order is still designed to facilitate the proliferation of CAVs, it includes new requirements that CAV owners affirm that the vehicles meet all relevant federal standards, and that they are capable of reaching a “minimal risk condition” if the autonomous system fails.

Along with these basic safety precautions, the order also directs the Arizona Departments of Public Safety and Transportation to issue a protocol for law enforcement interaction with CAVs. This protocol is a public document intended both to guide officers in interactions with CAVs and to facilitate owners in designing their cars to handle those interactions. The protocol, issued by the state Department of Transportation in May, requires CAV operators to file an interaction protocol with the Department explaining how the vehicle will operate during emergencies and in interactions with law enforcement. As CAVs proliferate, a uniform standard for police interactions across the industry may become necessary for purposes of administrative efficiency. If and when that occurs, the initial standard set by Waymo in Arizona is likely to bear an outsized influence on the nationwide industry.

Critics have called the new executive order’s modest increase in safety requirements too little for such an unknown and potentially dangerous technology. Even among critics however, there is no agreement as to how exactly CAVs should be regulated. Many have argued for, at minimum, more transparency from the CAV companies regarding their own safety and testing procedures. On the other hand, advocates of Arizona’s relaxed regulatory strategy suggest that public unease with CAVs, along with the national news coverage of each accident, will be enough to push companies to adopt their own stringent testing and safety procedures.

This more hands-off regulatory approach will get its first close-up over the next few months in Arizona. The results are likely to shape the speed and direction of growth in the industry for years to come.

 

Last week’s release of the Intergovernmental Panel on Climate Change (IPCC) special report highlights the “rapid and far-reaching” societal transformations required in order to limit warming to 1.5, or even 2 degrees Celsius. A new study by researchers at the University of Michigan, published in the journal Environmental Science & Technology, highlights the role of connected and automated vehicles (CAVs) in ushering in a low-emissions future. This research sheds new light on a largely understudied aspect of the coming CAV revolution. In my first post for the Journal of Law and Mobility, I will summarize that study and provide key takeaways for policymakers.

The Michigan study identifies several factors that will cause CAVs to emit more greenhouse gases than comparable human-driven vehicles. The weight of sensors and the computer system necessary to operate an CAV, the power consumed by the computer system, in particular the mapping function used to create high definition charts of the car’s surroundings, and the increased drag from cameras and sensors mounted on the outside of the vehicle, all operate to increase emissions. Depending on the weight of the equipment and power usage of the computer, these factors were found to increase emissions by between 2.8% and 20% relative to a comparable human driven car.

These factors are expected to be partially, if not entirely, offset by the car’s ability to create more favorable traffic patterns and identify more efficient routes. This extra efficiency is expected to more than offset any increase in weight, power usage, and drag under some scenarios, and turn a relatively large emissions increase into a more modest one under others. All things considered, the study finds that the emissions impact of CAVs will range from a 9% reduction to a 5% increase.

Many of the obstacles to reducing CAV emissions are engineering challenges: reducing the weight and power consumption of computer systems, and improving the aerodynamics of external sensors. Policymakers role in solving these challenges are likely to primarily take the form of support for university research and/or tax credits for private sector research on improving the efficiency of CAVs.

Policymakers do however have a significant role to play in improving the network effects of automated vehicles, such as reduced congestion. After the proper levels of safety, security, and reliability are obtained, a high volume of CAVs on the road increases the efficiencies that can be gained through cars communicating with each other to ease the flow of traffic. Laws that ensure high standards for data privacy and CAV safety can give consumers the confidence needed to use CAVs at a higher rate. Regulatory schemes that ease the entrance of CAV fleets into a city’s vehicular landscape can promote early adoption.

Particularly as the technology advances, CAVs have a role to play in reducing harmful greenhouse gas emissions. Widespread adoption of the technology can maximize these benefits, paving the way for large fleets of CAVs that create strong network efficiencies. As the technology advances to a point of being safe for public use, policymakers should account for these potential benefits as they consider the advent of CAVs in their cities.