Archive | Regulation

John McGinnis on the Case for Allowing Cell Phone Use on Planes

Few issues arouse as many strong emotional reactions as the possibility of permitting cell phone usage on planes. At the Law and Liberty blog, Northwestern University law professor John McGinnis has an excellent post making the case for legalization:

Cell phones on airplanes frighten a lot of people and not for safety reasons. Few people want to listen to a seatmate discuss his cat’s health or other trivia for hours. As someone who flies a good deal and values a trip in the clouds for wispy and random reflection, I deeply sympathize. But as a friend of liberty, I oppose a law to ban phone calls on planes….

In the same week in December that the FCC voted to consider lifting its ban on cell phones for airplanes, members of Congress introduced legislation to ban calls, regardless of an inquiry into their safety. This position allows our representatives to pose as tribunes of the people’s ear. But left to their own devices, airlines have an interest in maximizing revenue by satisfying both cell phone users and devotees of peaceful glide time.

First, some airlines might permit cell phone uses and others not, giving customers a choice. Southwest, for instance, has said it will not allow phone service, regardless of its legality. Second, airlines could have quiet sections where no cell phone is permitted and sections where travelers can connect with the world outside. Even the government monopoly of Amtrak offers inspiration here with its quiet cars in several sections of the nation.

Third, airlines could use surcharges to limit phone use to those most willing to pay for it, thus preserving relative tranquility while satisfying those who really need to make calls. Unbundling communication and transportation services in this way could even lower prices for passengers who do not

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Looking at My Vehicle Automation Entries in the Rear-View Mirror

Thank you for reading my posts this week. If you happen to be Eugene Volokh or Ken Anderson, thank you in particular for making them possible. And if you were one of my thoughtful commenters, thank you for questioning and challenging; I have read your remarks with great interest.

My goal in these posts was to raise a set of legally relevant issues that have yet to receive sufficient attention in public and academic discussions of vehicle automation: automated shuttles, infrastructure planning, process-based regulation, and product obsolescence.

Critically, these are also issues that matter to the present: Automated shuttles are already available, at least one environmental impact statement has already analyzed automated truck platooning, California’s Department of Motor Vehicles is currently drafting rules on self-driving vehicles, and cars with what are considered to be “advanced” driver assistance systems are on the market today. Responsible deployment of automation technologies requires a dialogue between law and engineering, and on these particular issues it is the law’s turn to speak.

Many other technical, legal, and policy issues will also be (gradually and imperfectly) resolved through this iterative process. The wholesale reinvention of our tort system, for example, is probably not necessary for self-driving cars and trucks to (eventually) reach the market. At the same time, however, incrementalism may obscure the evolution of some values, like citizen and consumer privacy, that merit more public attention.

One of the recurrent themes in my posts was the potential for greater centralization: The deployment of centrally managed shuttle fleets, the development of process-based rules that may benefit larger companies, and the continuation of manufacturer control through over-the-air updates could all tend to consolidate rather than disperse power. I understand that technical and political dangers are inherent in this systematic approach, which I shared [...]

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Planning for the Obsolescence of Technologies Not Yet Invented

The automated motor vehicles that I have discussed this week are just one example of the remarkable technologies coming to our roads, skies, homes, and even bodies. A decade from now, we’ll marvel at how advanced these new products are. But a decade after that, we’ll marvel at how anachronistic they have become.

Rapid technological change means that obsolescence is inevitable, and planning for it is as much a safety strategy as a business strategy. Responsible developers and regulators will need to consider the full lifecycle of products long before those products ever reach the market.

Cars of the early 20th Century (JSTOR) were essentially beta products. In 1901, Horseless Age magazine noted that “[i]f a manufacturer finds that the axles of his machine are” breaking, then “the next lot of vehicles are provided with axles of a slightly larger diameter and so on until they begin to stand up pretty well.” In 1910, a GM engineer testifying in MacPherson v. Buick Motor Co. explained that “the only means” for a designer to get information about a vehicle’s performance “is to use the customers, that is to go over the complaint correspondence.”

As I noted yesterday, it is at least conceivable that a similar approach to modern design could counterintuitively end up saving lives by accelerating safety-critical innovation. But even a more cautious approach to product design and deployment is necessarily iterative.

The general bent of incremental innovation is toward greater safety. The electronic stability control now required in new cars, for example, could save thousands of lives a year if deployed fleetwide. But given the slow turnover in cars–the average age of today’s fleet exceeds ten years–reaching saturation could take years.

At the same time, new products can present new dangers. Most of these dangers are [...]

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The Reasonable Self-Driving Car

A common debate in many circles–including the comments on my posts here–is whether legal burdens, technical limitations, or consumer preferences present the greatest immediate obstacle to fully automated motor vehicles. (Fully automated vehicles are capable of driving themselves anywhere a human can. In contrast, the low-speed shuttles from my post on Monday are route-restricted, and the research vehicles that regularly appear in the news are both route-restricted and carefully monitored by safety drivers.)

An entirely correct response is that the technologies necessary for full automation are simply not ready. Engineering challenges will be overcome eventually, but at this point they are varied and very real. If they were not, we would already see fully self-driving cars operating somewhere in our diverse world–in Shanghai or Singapore, Abu Dhabi or Auckland.

The deeper issue, which manifests itself in law, engineering, and economics, is our (imperfect and inconsistent) societal view of what is reasonably safe, because it is this view that determines when a technology is ready in a meaningful sense. Responsible engineers will not approve, responsible companies will not market, responsible regulators will not tolerate, and responsible consumers will not operate vehicles they believe could pose an unreasonable risk to safety.

How safe is safe enough? One answer, that self-driving cars must perform better than human drivers on average, accepts some deaths and injuries that a human could have avoided. Another answer, that self-driving cars must perform at least as well as a perfect human driver for every individual driving maneuver, rejects technologies that, while not perfect, could nonetheless reduce total deaths and injuries. A third answer, that self-driving cars must perform at least as well as corresponding human-vehicle systems, could lock humans into monitoring their machines–a task at which even highly trained airline pilots can occasionally fail due to understimulation [...]

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The Impact of Automation on Environmental Impact Statements

Since the 1950s, the Long Beach Freeway has linked the massive Ports of Long Beach and Los Angeles to, roughly, the rest of the continental United States. Because much has changed in trade and traffic since then, California’s relevant transportation authorities have decided that perhaps this freeway should change as well.

The resulting Draft Environmental Impact Statement (EIS), released in 2012, includes several project alternatives that feature a dedicated four-lane freight corridor for the many trucks that service the ports. In two of these alternatives, all of the trucks on the corridor are assumed to have automated steering, braking, and acceleration that enables them to travel in closely spaced platoons of six to eight vehicles. Smoother flows and lower headways mean higher vehicular capacity.

Automation–or at least automation-related litigation–is coming to an EIS near you.

For a transportation project, automation may be relevant to many of the project alternatives, including the no-build. Potential highway expansions typically use a planning horizon of at least twenty years, and yet several automakers now forecast that they will market vehicles with some kind of advanced automation within a decade. (To put this in slightly more skeptical terms, the self-driving cars that have been twenty years away since the 1930s are now just ten years away.)

As I have argued, the ongoing automation of our transportation system could change land use patterns, increase both travel demand and roadway vehicular capacity, and improve the vehicular level of service at capacity. This means that some of the basic assumptions upon which an EIS’s alternatives analysis is based, like a freeway lane’s theoretical capacity of 2400 vehicles per hour, may be outdated by the time a project alternative is implemented.

In addition, as with the Long Beach Freeway analysis, particular alternatives may involve the automation of vehicles [...]

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Driverless Carts Are Coming Sooner Than Driverless Cars

I’m delighted to be spending this week committing overt acts in furtherance of the Volokh Conspiracy. Since joining Stanford in 2011, I’ve been studying the increasing automation, connectivity, and capability that promise to dramatically change our lives, institutions, and laws. My posts this week will focus on one key example: self-driving vehicles (or whatever you want to call them). The timing is fortuitous, since any remaining legal or technical issues that we fail to collectively solve in the comments section of this blog can be remedied at next week’s U.S. House hearing on “How Autonomous Vehicles Will Shape the Future of Surface Transportation.”

A number of other government bodies are already shaping the legal future of autonomous driving. Nevada, Florida, California, and the District of Columbia have enacted laws expressly regulating these vehicles, California’s Department of Motor Vehicles is currently developing more detailed rules, and a number of other states have considered bills. The U.S. National Highway Traffic Safety Administration (NHTSA) released a preliminary policy statement earlier this year, and Germany, Japan, the United Kingdom, and the European Union have also taken initial domestic steps. Meanwhile, parties to the 1949 Geneva and 1968 Vienna Conventions on Road Traffic are discussing how to reconcile language in these treaties with advanced driver assistance systems.

These efforts tend to view vehicle automation as an incremental process in which driving functions are gradually shifted from human drivers to automated driving systems. The taxonomies developed by the German Federal Highway Research Institute, NHTSA, and SAE International’s On-Road Automated Vehicle Standards Committee (on which I serve) are consistent with this view, even if they are not yet entirely consistent with each other. Yesterday’s cars have antilock brakes and electronic stability control, today’s cars are getting adaptive [...]

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Bryant Walker Smith Guest-Blogging This Week About Self-Driving Cars, Automation Technologies, and Their Regulation

Automation and robotic technologies have popped up in Volokh Conspiracy posts several times during the last few years – drone aircraft, autonomous or highly automated weapons, nursing and eldercare assistance machines and, of course, self-driving cars.  So I’m pleased to announce that Bryant Walker Smith, a leading expert on automation and the law, will be guest-blogging this week here at Volokh Conspiracy – on self-driving cars, and automation technologies and their regulation more broadly.

Bryant is a fellow at both Stanford Law School’s Center on Internet and Society (CIS) and Stanford’s Center for Automative Research (CARS). I first met him at a Stanford conference where he presented a CIS report giving the only genuinely comprehensive analysis of the whether a self-driving car would be legal under the law of each of the 50 states, the federal government, and the Geneva Convention you have never heard of – on driving automobiles.  He trained and worked as a civil engineer before studying law, and his academic writing focuses on torts, technology, legislation and regulation, as well as international economic and environmental law.

Apart from the CIS report, Bryant has also written a number of straightforwardly academic law review articles (he is on the law teaching job market this year, and is a lecturer at SLS, where he teaches a class on self-driving vehicles and the law).  Particularly interesting to me (in part because it is counterintuitive to some understandings of automation technologies and traffic management) is “Managing Autonomous Transportation Demand” – it suggests that genuinely successful automation might increase demand for driving and hence put greater, not lesser, pressure on road systems and traffic management; it applies a set of engineering concepts to make recommendations about how such demand, if it were to materialize in this way, might be managed efficiently. [...]

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Coase on Externalities

The existence of “externalities” — effects (costs or benefits) of market transactions that are not experienced by those involved in the transaction, but are instead experienced by others, those “external” to the transaction —  is routinely proffered as a justification for governmental regulation of private economic activity.  Ronald Coase had a different view, however. In his seminal essay, “The Problem of Social Cost,” Coase never used the term — and with good reason. In Coase’s view, the word “externality” did not do much work.  In his introduction to The Firm, The Market, and the Law, Coase wrote:

the existence of “externalities” does not imply that there is a prima facie case for government intervention, if by this statement is meant that, when we find “externalities,” there is a presumption that governmental intervention (taxation or regulation) is called for rather than the other courses of action which could be taken (including inaction, the abandonment of earlier governmental action, or the facilitating of market transactions). . . .

. . . it is easy to show that the mere existence of “externalities” does not, in itself, provide any reason for governmental intervention. Indeed, the fact that there are transaction costs and that they are large implies that many effects of people’s actions will not be covered by market transactions. Consequently, “externalities” will be ubiquitous. The fact that governmental intervention also has its costs makes it very likely that most “externalities” should be allowed to continue if the value of production is to be maximized. This conclusion is strengthened if we assume that the government is not like Pigou’s ideal but is more like his normal public authority–ignorant, subject to pressure, and corrupt. Whether there is a presumption, when we observe an “externality,” that governmental intervention is desirable, depends on the cost

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Cass Sunstein on Taxi Cab Regulation

Famed Harvard law professor and former Obama Administration official Cass Sunstein is no enemy of regulation in general. But in this recent column, he argues that big cities need to deregulate the taxi market:

People can run into two problems when they need to find a taxi. The first is that they don’t know whether a taxi will be available. The second is that they don’t know when a taxi will be available.

Uber Technologies Inc. (0084207D), a San Francisco-based company, was set up to solve both problems. You can download its application, and it will find out where you are and come pick you up. It will also tell you when it is coming….

Uber is now available in numerous cities, including Atlanta, Boston, Chicago, Dallas, Detroit, Los Angeles, New York, Philadelphia, San Diego, San Francisco and Washington. The good news is that it is serving tens of thousands of customers (and creating jobs in the process).

The less good news is that it is having to fight a series of absurd regulatory battles, which provide a revealing case study in interest-group efforts to block new entrants and innovative approaches.

The basic problem is that the taxi industry is intensely regulated. One goal of regulation isn’t to protect consumers. It is to entrench current providers and to limit competition.

With respect to taxis, some states have a system that isn’t altogether different from socialist-style planning. Some longstanding regulations have the purpose and effect of squelching new entrants. And in the face of fresh competition, the industry has been creative and occasionally shameless….

True, there is an important place for rules designed to promote safety and to prevent fraud or deception. But regulation of the taxi industry goes far beyond those goals. That regulation is a dinosaur; it should

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2012 Unified Agenda Released Before End of Year

Regulatory policy mavens have been wondering all year when the federal government would release the Unified Agenda of Regulatory and Deregulatory Actions. This report details the various actions planned by federal regulatory agencies. The Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget is supposed to release the Unified Agenda twice a year, but until December — late December — no report had been issued. Now the wait is over. Just in time for Christmas OIRA released a single report for 2012 (available here). Some had speculated the report had been withheld because federal agencies were planning a “tsunami” of post-election regulations. Yet according to the Washington Times, that does not appear to be the case.

And speaking of OIRA, former administrator Cass Sunstein has posted a forthcoming article on myths and realities” about the office. [...]

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Assessing the REINS Act

Among the regulatory reform proposals passed by the House of Representatives this year was the “REINS Act,” a proposal to require Congressional approval before major regulations could take effect. Supporters and opponents of this bill have presented the REINS Act as a deregulatory tool. The actual effect of the REINS Act is likely to be more modest, for reasons I explain in an article forthcoming in the NYU Journal of Legislation and Public Policy (available on SSRN here). While I believe the REINS Act would significantly increase legislative accountability for regulatory policy, I doubt it would stop all that many regulatory initiatives, particularly those with significant public support.

Passage of the REINS Act has always been a long shot. Though it passed the House of Representatives, the Senate has shown little interest. This month’s election makes the REINS Act’s chance of becoming law even more remote, as the Democrats have increased their Senate majority and President Obama has said he would veto REINS were it to reach his desk. Debates over regulatory reform will continue nonetheless. So, for those interested, here’s the abstract of the paper SSRN.

Over the past several decades, the scope, reach and cost of federal regulations have increased dramatically, prompting bipartisan calls for regulatory reform. One such proposed reform is the Regulations of the Executive in Need of Scrutiny Act (REINS Act). This proposal aims to restore political accountability to federal regulatory policy decisions by requiring both Houses of Congress to approve any proposed “major rule.” In effect, the REINS Act would limit the delegation of regulatory authority to federal agencies, and restore legislative control and accountability to Congress. This article seeks to assess the REINS Act and its likely effects on regulatory policy. It explains why constitutional objections to the proposal are unfounded

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Is the Supreme Court “Pro-Business”?

Stephen Richer of Forbes has a good summary of the reasons why claims that the Supreme Court has a “pro-business” bias are misplaced. He also provides numerous links to articles and blog posts on both sides of the issue, including one by co-blogger Jonathan Adler.

I summarized my own thoughts on the issue in this 2010 post, which Richer also linked:

[M]ost… discussions of the issue… have two important weaknesses: failure to consider the underlying quality of the two sides’ arguments in “pro” and “anti” business decisions, and the use of a crude definition of what counts as pro-business…

[Adam] Liptak discusses at some length the result of a recent study showing that “business” interests won 61% of “economic” cases in the Roberts Court, compared to 46% during the last few years of the Rehnquist Court. But this proves the existence of a pro-business bias only if unbiased decision-making would have led to a lower win rate for business. What percentage of these cases would business have won if the judges were totally unbiased? How good were the legal arguments on each side? If, for example, business “deserved” to win 80% of these cases on the merits, then the 61% win rate would reflect an anti-business bias rather than a pro-business one.

During his tenure as head of the NAACP Legal Defense Fund in the 1940s and 50s, Thurgood Marshall won 29 of the 32 civil rights cases he argued in the Supreme Court. Was that because the Court was “biased” in favor of civil rights plaintiffs or because many state governments in that era abused civil rights so severely that it was easy for skilled litigators at the NAACP to find egregious instances of discrimination that were very hard to defend in court?…

The second problem with

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Where Is the Unified Agenda?

The federal government is supposed to publish the Unified Agenda of Regulatory and Deregulatory Actions twice a year. This document provides a rundown of all the various regulatory (and deregulatory) actions that are in various stages of the regulatory pipeline. In this way, the agenda provides an overview of the federal government’s regulatory activities, and alerts readers to regulatory actions that could be coming down the pipe. The agenda is supposed to be released in the spring and fall, though it often comes out late. This year, however, neither spring nor fall edition has been released. Nor has the federal government published the final version of its report on the costs and benefits of federal regulations. The draft was released in March. Wayne Crews comments:

These delays matter because the president promised to slim the regulatory waistline and has issued specific executive orders in the process. Expediting the data that would ease outside assessments would seem an obvious must-do.

It is true Bush issued more overall rules (coming off the Clinton era) over the past three years as the president likes to claim; but Obama issued more of the high-dollar “economically significant” variety  the Unified Agenda highlights. It’d be nice to have the figures and plans for 2012. . . .

Accountability for regulations matters, and disclosure is a prerequisite.

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