The California Department of Motor Vehicles
(CDMV) has issued proposed regulations for self-driving cars (also known as
autonomous vehicles, or AVs), and what they are planning wasn't all good news,
at least to hopeful AV developers such as Google. Last Wednesday, the CDMV released a draft version of rules
that would apply to AVs used not for experiments and tests (these have been
allowed for some time already), but by paying customers. They are pretty restrictive.
For one thing, the CDMV doesn't want anybody
selling AVs yet—only leasing. For
another thing, a specially licensed person has to be in the vehicle whenever
it's operating, and able to take over manual control at any time. These restrictions rule out some of the
most commercially promising potential applications for AVs, namely, driverless
delivery vehicles. In its defense,
the CDMV says that more testing is needed before such vehicles can be let loose
on California freeways. And having
driven on California freeways myself, I have to say they may have a point.
You can't blame the CDMV for being
cautious. So far, the testing
Google and automakers such as Mercedes and Tesla Motors have done has not
turned up any show-stopper problems with autonomous vehicle systems. But effects that don't show up in
small-scale tests can raise their ugly heads later. I'm not a traffic engineer, but there may be new types of
problems that don't arise until the percentage of AVs on the road rises above a
certain threshold. Despite all the
manufacturers' efforts, AVs will act differently than human-driven cars, and
depending on the programming, sensor layout, and other factors, there may be
some unknown interactions, perhaps between cars of different makes, that will
lead to weird and possibly hazardous problems that nobody could have suspected
in advance. We simply don't know. So going slow in the largest automotive
market of any state is perhaps a good thing.
On the other hand, history shows that
government restrictions on new technology can quickly become absurd and even
obstruct progress. Historians of
the automobile are familiar with the "red flag laws" that the English
Parliament enacted in the latter part of the 1800s. A typical law of this type required any "powered
locomotive" on a public road to be accompanied by a person walking at
least sixty yards (55 m) ahead of the vehicle, holding a red flag to be used as
a signal to the operator to halt, and also to warn passersby of the machine's
approach. Despite rumors that
these laws were passed specifically to slow down the spread of self-powered
passenger vehicles, they were actually aimed at steam tractors, which were
mobile steam engines used to operate agricultural machinery. Steam tractors were developed as early
as the 1860s, and the larger ones could do considerable damage to the roads of
the day and frighten horses, so the regulations were appropriate at the time
they were first passed.
However, when the newer, smaller passenger automobiles
of the 1890s came along, the 4-miles-per-hour speed limits and other
restrictions that were appropriate for steam tractors made little sense for
autos, and it took some time for popular demand and pressure from automakers to
change the red-flag laws.
Something similar happened in a few U. S. states, but by 1900 most
red-flag laws had been repealed or transformed into regulations more suitable
for internal-combustion cars.
There are a couple of lessons here for what
could happen next with regard to AV regulations.
First, we should expect some overreacting on
the part of government regulators.
No regulator I know of ever got fired for being too vigilant. Unfortunately, very few regulators get
fired for not being vigilant enough, either, but the tendency of a bureaucracy
whose mission is to regulate an industry, is to do more than necessary rather
than less, up to the limit of the resources the regulator has at hand. Some commentators have said that what's
bad for California is going to be good for Texas, which has taken a much more
laissez-faire attitude toward AV experiments by Google and others. So we can thank what remnants of
federalism remain in the U. S. for the fact that if one state passes
excessively restrictive laws on an activity, companies can simply pull up
stakes and go to a more friendly state.
The second lesson is more subtle, but has
deeper and broader implications.
It has to do with the gradual but pervasive spread of what is called
"administrative law." To
explain this problem, we need another historical detour.
Those familiar with the U. S. Constitution
know that the powers of the federal government were purposely divided into
three parts: the legislative
branch for making the laws on behalf of the people it represents, the executive
branch for enforcing the laws, and the judicial branch for judging whether
citizens have violated the laws.
This was done in reaction to the so-called "prerogative" that
the English kings of the 1600s and earlier liked to exercise. In those bad old days, a king could
haul off and make a law (legislative power), have his royal officers drag a
subject in off the street (executive power), and pass judgment on whether the
guy had broken the King's law (judicial power). Combining these distinct powers in one person was a great
way to encourage despotism and tyranny.
The authors of the U. S. Constitution had enough of that, thank you, so
they strictly divided the operations of government into three distinct branches
corresponding to the three basic functions of government, and made sure that
new laws could be originated only by representatives elected by the people.
But over the last century or so, the dam
holding back government by prerogative has sprung lots of leaks in the form of
administrative laws. Nobody elects
anyone who serves in the California Department of Motor Vehicles. It's just a bunch of bureaucrats who
can make up regulations (legislate), pronounce penalties for violation of those
regulations (execute), and in some cases even decide on whether a party is
guilty or innocent of violating the regulations (judge). Yes, the California Senate, a
representative body, asked the CDMV to do this, but in turning over the power
to make laws to the CDMV, the Senate abdicated its legislative function and
handed it over to a non-representative body.
This is an oversimplified version of a huge
and pervasive issue, but once you understand the nature of the problem, you can
see versions of it everywhere, especially in the alphabet soup of federal
agencies: OSHA, FDA, FCC,
etc. At least in the case of the
red-flag laws, it was Parliament itself which passed the laws, and which
modified them in response to public demand when the time came. But if the voters of California don't
like what the CDMV does, they don't have a lot of options.
Perhaps the streets of Austin will see lots of
consumer-owned AVs before you can find any in Los Angeles. That's fine with me, as long as they
drive at least as well as the average Texas driver. And that shouldn't be too hard.
Sources: I learned about the proposed CDMV
regulations from an article by Kevin Williamson "The Long Road to
Self-Driving Cars" in National
Review at http://www.nationalreview.com/article/428715/california-self-driving-car-regulations. I also referred to an article in Fortune's online edition at http://fortune.com/2015/12/16/google-california-rules-self-driving-cars/
and Wired at http://www.wired.com/2015/12/californias-new-self-driving-car-rules-are-great-for-texas/. A summary of the proposed CDMV
regulations can be found at https://www.dmv.ca.gov/portal/wcm/connect/dbcf0f21-4085-47a1-889f-3b8a64eaa1ff/AVRegulationsSummary.pdf?MOD=AJPERES.
I also referred to the Wikipedia
article "Locomotive Acts." I am currently reading law scholar Philip Hamburger's lengthy
tome Is Administrative Law Unlawful?
(Univ. of Chicago Press, 2014), which contains hundreds of arguments against
administrative law.
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