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Liability rules for autonomous vehicles

Richard A. Epstein (School of Law, New York University, New York, New York, USA)

Journal of Entrepreneurship and Public Policy

ISSN: 2045-2101

Article publication date: 4 March 2021

Issue publication date: 13 July 2021

429

Abstract

Purpose

The coming use of autonomous vehicles has kindled an extensive debate over the choice of a desirable liability regime. This article contributes to that debate by explaining how rules for liability and damages ought to be constructed to deal first with stranger (including highway) cases and then with consensual cases (like medical malpractice). It concludes that an output regime based on events as they unfold is applicable in the former but not in the latter. It then argues that this legal regime carries over without a hitch to autonomous vehicles. It then further notes that in private disputes there are no fixed rules for deciding how to mix rules for injunctions and liabilities for threatened harms, and further notes that the regulatory regime for IoT will face those same difficulties, which are best solved by trying to minimize the sum of Type I and Type II errors, as in other cases.

Design/methodology/approach

Legal reasoning/analysis.

Findings

One salient point is that the rules of the road should change in response to technical innovation, but liability rules should not. The sound approach for dealing with damages for past incidents ought to be constructed to deal first with stranger (including highway) cases in which there is a dichotomous decision on compliance or not. That regime is based on events as they unfold, and carries over without a hitch to autonomous vehicles. For dealing with the prevention of future harms from violation of these rules, by contrast, there are no fixed rules for deciding how to mix damages with injunction, and the substitution of a system of direct state enforcement faces the same difficulties of implementation. In both settings, the rules of the road should be held constant, after which the ideal remedial mix follows the traditional approach of trying to minimize the sum of Type I and Type II errors, relating to over and underenforcement. The basic rules of tort liability stand in contrast to the different standards of liability that arise in consensual situations, and in all cases, they must necessarily be supplemented by rules of vicarious and product liability. Overall, the bottom line is this: autonomous vehicle innovations are relevant to designing regulations for future and uncertain harms, but irrelevant to liability for past harms.

Originality/value

This is an original legal analysis on the topic of Autonomous Vehicles.

Keywords

Acknowledgements

This paper forms part of a special section “Startup Innovation: The Role of Regulation in Entrepreneurship”, guest edited by Richard A. Epstein, Seth Oranburg and Liya Palagashvili.This publication was made possible through the support of a grant from the John Templeton Foundation. The opinions expressed in this publication are those of the author and do not necessarily reflect the views of the John Templeton Foundation. The author also thanks Kenneth Lee, Matt Pociask, Denis Rondeau, Max Semels and Sarah Welch of the University of Chicago Law School, and two anonymous referees. The author has also benefited from a vigorous exchange with Professor Eric Talley, who is indeed, the ideal “input man.”

Citation

Epstein, R.A. (2021), "Liability rules for autonomous vehicles", Journal of Entrepreneurship and Public Policy, Vol. 10 No. 2, pp. 218-234. https://doi.org/10.1108/JEPP-03-2019-0008

Publisher

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Emerald Publishing Limited

Copyright © 2021, Emerald Publishing Limited

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