California Puts the Brakes on Autonomous Vehicles

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.