Machines without principals: Liability rules and artificial intelligence

Washington Law Review

Volumn 89, Issue 1, 2014, Pages 117-150

  Vladeck, David C ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 84897429030     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (208)

1. PAMELA MCCORDUCK, MACHINES WHO THINK: A PERSONAL INQUIRY INTO THE HISTORY AND PROSPECTS OF ARTIFICIAL INTELLIGENCE, at xxiii-iv (2004).
2. Id. at 413.
3. Anne Trafton, Assistive Robot Adapts to People, New Places, MIT TECHTALK, Apr. 11, 2007, at 3 (reporting developments from MIT's Humanoid Robotics Group in perfecting "Domo," a robot that can adapt to situations to assist people with everyday chores, everyday life, and everyday work), available at http://web.mit.edu/newsoffice/2007/techtalk51-23.pdf.
4. The history of The Jetsons can be found at various websites, including, The Jetsons, WIKIPEDIA, http://en.wikipedia.org/wiki/The_Jetsons (last visited Feb. 12, 2014)
5. Hanna Barbera Wiki, The Jetsons, WIKIA, http://hanna-barbera.wikia.com/wiki/The_Jetsons (last visited Feb. 12, 2014).
6. Trafton, supra note 3 (reporting that "Domo" is based in part on "Rosie").
7. Harry McCracken, The Jetsons Turns 50: How the Future Looked in 1962, TIME (Sept. 23, 2012), http://techland.time.com/2012/09/23/the-jetsons-turns-fifty/
8. Steve Waldis, Keeping Up With the Jetsons, WIRED (Jan. 7, 2014, 11:00 AM), http://insights.wired.com/profiles/blogs/keeping-up-with-the-jetsons (comparing modern advances in "smart home" technology to The Jetsons)
9. Troy Wolverton, Your Home Could Soon Be Like the Jetsons', SAN JOSE MERCURY NEWS (Jan. 11, 2014, 7:10 PM), http://www.mercurynews.com/troy-wolverton/ci_24893407/wolverton-your-home-could-soon-be-like-jetsons (same).
10. Daniel C. Dennett, Higher Games, MIT TECH. REV. (Aug. 15, 2007) (analyzing the significance of "Deep Blue's" win over chess genius Gary Kasparov in 1997), http://www.technologyreview.com/review/408440/higher-games/
11. John Markoff, Computer Wins on 'Jeopardy!': Trivial, It's Not, N.Y. TIMES, Feb. 17, 2011, at A1, available at http://www.nytimes.com/2011/02/17/science/17jeopardy-watson.html?pagewanted=all (describing "Watson's" commanding success over two former Jeopardy champions).
12. Sha Jin & Kaiming Ye, Nanoparticle-Mediated Drug Delivery and Gene Therapy, 23 BIOTECHNOLOGY PROGRESS 32 (2007).
13. 2001: A SPACE ODYSSEY (Metro-Goldwyn-Mayer Pictures 1968).
14. HAL is an acronym for Heuristically programmed Algorithmic computer. See HAL 9000, WIKIPEDIA, http://en.wikipedia.org/wiki/Heuristically_programmed_algorithmic_computer (last visited Feb. 12, 2014)
15. KUBRICK 2001: THE SPACE ODYSSEY EXPLAINED, http://www.kubrick2001.com/(last visited Feb. 17, 2014). Because HAL is portrayed in the film as a living being, I will use animate, not inanimate, pronouns to refer to HAL.
16. 2001: A Space Odyssey: Quotes, IMDB, http://www.imdb.com/title/tt0062622/quotes (last visited Feb. 26, 2014) (HAL's complete answer to the interviewer's question is as follows: "The 9000 series is the most reliable computer ever made. No 9000 computer has ever made a mistake or distorted information. We are all, by any practical definition of the words, foolproof and incapable of error.").
17. (Dave's full response to the question is as follows: "Well, he acts like he has genuine emotions. Um, of course he's programmed that way to make it easier for us to talk to him. But as to whether he has real feelings is something I don't think anyone can truthfully answer.").
18. 2001: A SPACE ODYSSEY, supra note 9.
19. 2001: A Space Odyssey, Quotes, IMDB, http://www.imdb.com/title/tt0062622/quotes (last visited Feb. 26, 2014) ("I'm afraid. I'm afraid, Dave. Dave, my mind is going. I can feel it. I can feel it. My mind is going. There is no question about it. I can feel it. I can feel it. I can feel it. I'm a fraid."). The same intelligent machine-versus-humans theme was explored with far less nuance but much more mayhem in the 1984 film The Terminator, which tells the story, set in 2029, of how an artificially intelligent defense network, "Skynet," becomes self-aware and decides to wipe-out mankind through a nuclear holocaust. Skynet nearly succeeds. Only a few humans survive, and they form a resistance movement. Over time, the resistance gains enough strength that it is on the verge of beating the machines. To regain the offensive, Skynet sends the "Terminator," played by Arnold Schwarzenegger (people forget that he was the villain in the first film), back to 1984 to kill Sarah Connor, then pregnant with John Connor, who grows up to lead the resistance against Skynet. Much entertaining violence ensues, and the film ends inclusively. See THE TERMINATOR (Orion Pictures Corp. 1984). John Connor and his mother survive, in part because the resistance sends its own highly intelligent robot/warrior back in time to defend them, but there is no doubt that they will face another onslaught from Skynet terminators. Id. These onslaughts come in an unending number of sequels involving ever more intelligent and dangerous robotic assassins, but John Connor nonetheless eludes them all, mainly because of help from a highly skilled robot warrior sent by the resistance to protect him (played by Arnold Schwarzenegger). See, e.g., TERMINATOR 2: JUDGMENT DAY (TriStar Pictures 1991).
20. TERMINATOR 3: THE RISE OF THE MACHINES (Warner Bros. Pictures, Columbia Pictures 2003). But the film's basic point is a warning to humans: Be careful what we wish for. Artificially intelligent machines that have the capacity to "think" for themselves should not be trusted because they may turn on humans.
21. See infra notes 15-16 and accompanying text.
22. There has been extensive litigation over the safety of surgical robots, especially the "da Vinci" robot. Not surprisingly, no one has claimed that the robot itself bears any liability. the claims all proceed on some form of agency theory. See, e.g., O'Brien v. Intuitive Surgical, Inc., No. 10 C 3005, 2011 WL 304079, at *1 (N.D. Ill. Jul. 25, 2011) (granting summary judgment to robot's manufacturer).
23. Mracek v. Bryn Mawr Hosp., 610 F. Supp. 2d 401, 402 (E.D. Pa. 2009) (same), aff'd, 363 F. App'x 925 (3d Cir. 2010).
24. It is useful to contrast the complexity of driver-less cars to what we think of as highly sophisticated machines in widespread use today. For instance, most commercial airplanes have "auto pilots," which shift control of the aircraft to a computer that "flies" the plane. So too do most vessels. But in comparison to driver-less cars, the autopilot devices perform a relatively simple set of tasks. Autopilots keep the plane or vessel on a course determined by the pilots, and do so by controlling for minor variations in winds and currents, but generally without reference to other traffic. For that reason, pilots have a duty to remain vigilant-while the machine may have the controls, the pilots are responsible for monitoring other traffic and ensuring that the autopilot is working correctly. See, e.g., In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1478 (D.C. Cir. 1991).
25. Boucvalt v. Sea-Trac Offshore Servs., Inc., 06-103 (La. App. 5 Cir. 10/17/06). 943 So. 2d 1204, 1208. In contrast, for autonomous cars, one key goal is to reduce the oversight required by the driver, both to maximize safety and to capture the possibility of increased productivity during long commutes. The systems that control autonomous cars are required to navigate through complex and rapidly changing environments-e.g., traffic, weather, detours and the like-and are responsible for making critical decisions-e.g., what route to take, what lane to be in, what exit to take, and so forth. See Dylan LeValley, Note, Autonomous Vehicle Liability-Application of Common Carrier Liability, 36 SEATTLE U. L. REV. 5, 7 (2013). And there may be good reasons why the designers of driver-less cars would want to discourage human drivers from intervening. A driver intervening to prevent what he perceives to be a possible accident may be less equipped to handle the situation than the car's autonomous driving system. he may not have monitored blind spots, heard the siren of an approaching emergency vehicle, or been privy to a communication sent by another vehicle in close proximity warning of some danger, and his reaction time is certainly going to be slower than the car's. See id. at 16 (pointing out that Air France flight 447 crashed over the Atlantic because of pilot error. When the plane's autopilot sensors stopped working due to the build-up of ice, the pilots took over control of the plane, and reacted in a way that exacerbated the icing problem, causing the plane to crash).
26. UGO PAGALLO, THE LAW OF ROBOTS: CRIMES, CONTRACTS AND TORTS 2 (2013). This Essay draws significantly on Professor Pagallo's path-breaking work, which broadly and ambitiously synthesizes the technical, philosophical, and legal questions surrounding the advent of fully autonomous, artificially intelligent machines.
27. Nick Bostrom, When Machines Outsmart Humans, 35 FUTURES 759, 763 (2003). Artificial intelligence theorists use the term "singularity" or "technical singularity" to describe the moment in time, purely hypothetical at this point, when machines exceed human intelligence. At that point, these theorists argue, machines will become fully sentient, and they will pose a raft of complex philosophical and legal questions with which society will have to wrestle
28. NICK BOSTROM & MILAN CIRKOVIC, GLOBAL CATASTROPHIC RISKS (2008).
29. RAY KURZWEIL, THE SINGULARITY IS NEAR: WHEN HUMANS TRANSCEND BIOLOGY 135-36 (2005).
30. HANS MORAVEC, ROBOT: MERE MACHINE TO TRANSCENDENT MIND 61 (1999). Ray Kurzweil predicts that "singularity" is now within reach, and will be achieved within fifteen years.
31. Ben Rossington, Robots 'Smarter Than Humans Within 15 Years,' Predicts Google's Artificial Intelligence Chief, MIRROR NEWS (Feb. 2, 2014), http://www.mirror.co.uk/news/technology-science/technology/ray-kurzweil-robots-smarter-humans-3178027. This Essay does not suggest that the first generation of fully autonomous, artificially intelligent machines will necessarily meet the various definitions of "singularity" that have been propounded. They probably will not. For our purposes, it is sufficient to focus on machines that are capable of "learning" to the point where they can take actions in ways that are not necessarily pre-ordained by the programs that enable them, and thus present the difficult agency problems discussed in Part II, infra.
32. RESTATEMENT (THIRD) OF AGENCY § 7.07 (2006) ("An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer."). Lev v. Beverly Enters.-Mass., Inc., 929 N.E.2d 303, 308 (Mass. 2010).
33. The most famous exposition of the "law" of robots comes from Isaac Asimov's I, Robot, where he lays out the Three Laws of Robotics: (1) a robot may not injure a human being, or, through inaction, allow a human being to come to harm. (2) a robot must obey the orders given it by humans, except where such orders would conflict with the First Law. (3) a robot must protect its own existence, as long as such protection does not conflict with the First or Second Law. ISAAC ASIMOV, I, ROBOT 37 (1950). See generally ARTHUR C. CLARKE, 2001: A SPACE ODYSSEY (1968).
34. Once an autonomous machine decides for itself what course of action it should take, the agency relationship becomes frayed or breaks altogether. See RESTATEMENT (THIRD) OF AGENCY § 7.07 (2006). id. § 7.03 (describing that a principal is subject to vicarious liability for an agent's actions only when the agent is acting within the scope of employment).
35. PAGALLO, supra note 17, at 4, 37-44, 49-55, 119-21. Oxford University Professor Nick Bostrom makes a similar argument. Nick Bostrom, The Superintelligent Will: Motivation and Instrumental Rationality in Advanced Artificial Agents, 22 MINDS & MACHINES 71-84 (2012).
36. Bill Joy, Why the Future Doesn't Need Us, WIRED (Apr. 2000), http://www.wired.com/wired/archive/8.04/joy.html.
37. This is not pure speculation. there is already emerging evidence that highly "intelligent" autonomous machines can learn to "break" rules to preserve their own existence. See Bostrom, supra note 22, at 77.
38. John Markoff, Scientists Worry Machines May Outsmart Man, N.Y. TIMES, July 26, 2009, at A1, available at http://www.nytimes.com/2009/07/26/science/26robot.html?_r=1&ref=todayspaper.
39. Jason Mick, New Navy-Funded Report Warns of War Robots Going "Terminator," DAILY TECH (Feb. 17, 2009, 8:58 AM), http://www.dailytech.com/New%20Navyfunded%20Report%20Warns%20of%20War%20Robots%20Going%20Terminator/article14298.htm.
40. Bostrom, supra note 22, at 77. As noted above, for our purposes, it is not essential that the machine has the capacity to actually choose to break a "rule".
41. it is enough that the machine's programming does not necessarily determine how the machine will act in all situations, leaving the machine to "learn" how to make decisions when confronted with a situation not within the contemplation of the machine's programmers.
42. Here we put aside any question of criminal liability. At some point, though, the science of artificial intelligence may evolve to the point where concepts of criminality will have to be applied to highly intelligent, autonomous machines. And perhaps that time will come sooner than many think. That was a central message of the 1982 science-fiction thriller, THE BLADE RUNNER (Warner Bros. 1982), which was set in 2019, and involved a detective played by Harrison Ford chasing down "replicants"-life-like robots-who were, like HAL, killing humans.
43. BLADE RUNNER: 30TH ANNIVERSARY, http://bladerunnerthemovie.warnerbros.com/(last visited Feb. 12, 2014).
44. United States v. Athlone Indus., Inc., 746 F.2d 977, 979 (3d Cir. 1984) (discussing how the manufacturer of a defective robotic pitching machine is liable for civil penalties for the machine's defects). Of course, the court's quip was not completely accurate. The court's point was that, because the robot lacked legal capacity, the robot could not be sued in personam. But the court's conclusion necessarily means that an in rem or quasi in rem action against a robot would be maintainable, precisely because the robot was an "object" rather than a legal "person." 27. As discussed in more depth infra, this proposal is not as far-fetched as it may seem, and may not require an upheaval in current law to achieve. Conceptualize a highly intelligent machine as one might think of a corporation, which through the income it earned or its intrinsic value was capitalized. There is no reason why the machine itself could not bear liability in case of wrongdoing. For driver-less cars, suppose as a condition of the sale of a driver-less car, state law requires the "car," not necessarily its purchaser, but maybe a pool consisting of the manufacturer, suppliers, and the purchaser, to obtain insurance sufficient to address any likely issue of liability. To ensure that the car remains insured, the car itself would be the policy-holder, and could not operate without valid insurance. The car might have to have a "kill switch" that would automatically disable the car in the event its insurance lapsed. But the point here is simply that the law could evolve to bestow "personhood" on machines, just as it has done for corporations.
45. Santa Clara Cnty. v. S.
46. Pac. R. Co., 118 U.S. 394 (1886) (observing that "corporations" may be "persons" for the purposes of the Fourteenth Amendment). My Georgetown colleague, Lawrence B. Solum, first floated this idea more than two decades ago
47. Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 N.C. L. REV. 1231 (1992).
48. Gary Marcus, Moral Machines, NEW YORKER (Nov. 27, 2012), http://www.newyorker.com/online/blogs/newsdesk/2012/11/google-driverless-car-morality.html. As Professor Marcus observes, it may be that truly autonomous military robots or drones will be introduced first.
49. Jason Palmer, Call for Debate On Killer Robots, BBC NEWS (Aug. 3, 2009, 7:09 PM), http://news.bbc.co.uk/2/hi/8182003.stm (explaining that the capacity to introduce drones that are able to make firing decisions without direct human oversight will soon be available). But that example does not lend itself to an exploration of the application of product liability rules to autonomous machines, since the law of war will plainly trump the law of products liability
50. John Markoff, War Machines: Recruiting Robots for Combat, N.Y. TIMES, Nov. 28, 2010, at A1 [hereinafter Markoff, War Machines].
51. Joshua Foust, Soon, Drones May Be Able to Make Lethal Decisions on Their Own, NAT'L J. (Oct. 8, 2013), http://www.nationaljournal.com/national-security/soon-drones-may-be-able-to-make-lethal-decisions-on-their-own-20131008.
52. Jeffrey K. Gurney, Note, Sue My Car Not Me: Products Liability and Accidents Involving Autonomous Vehicles, 2013 U. ILL. J. L. TECH. & POL'Y 247, 249 n.6. Google is not the only company engaged in the arms-race to develop a truly driver-less vehicle. Many other companies are engaged in the same enterprise.
53. Kevin Funkhouser, Note, Paving the Road Ahead: Autonomous Vehicles, Products Liability, and the Need for a New Approach, 2013 UTAH L. REV. 437, 437-38.
54. Bryant Walker Smith, Proximity-Driven Liability, 102 GEO. L.J. 18 (forthcoming 2014).
55. Andrew P. Garza, Note, "Look Ma No Hands!": Wrinkles and Wrecks in the Age of Autonomous Vehicles, 46 NEW ENG. L. REV. 581, 587 (2012).
56. JAMES M. ANDERSON et al., AUTONOMOUS VEHICLE TECHNOLOGY: A GUIDE FOR POLICYMAKERS 58-95 (RAND Corp. 2014) [hereinafter RAND REPORT], available at http://www.rand.org/pubs/research_reports/RR443-1.
57. Funkhouser, supra note 29, at 437-38, 443-44 (discussing the technology that Google cars use to avoid collisions).
58. Smith, supra note 29, at 18-19.
59. Garza, supra note 29, at 587-88.
60. Burkhard Bilger, Auto Correct: Has the Self-Driving Car at Last Arrived?, NEW YORKER (Nov. 25, 2013), http://www.newyorker.com/reporting/2013/11/25/131125fa_fact_bilger?currentPage=all.
61. John Markoff, Google Cars Drive Themselves in Traffic, N.Y. TIMES, Oct. 10, 2010, at A1, available at http://www.nytimes.com/2010/10/10/science/10google.html?pagewanted=all.
62. Sven A. Beiker, Legal Aspects of Autonomous Driving, 52 SANTA CLARA L. REV. 1145, 1149 (2012) (pointing out that "[d]river error is by far (95%) the most common factor implicated in vehicle accidents").
63. Markoff, War Machines, supra note 28 (describing the passive role of the "driver" in a self-driving car).
64. RAND REPORT, supra note 30, at 12-16.
65. Beiker, supra note 33, at 1149 (identifying human error as the primary catalyst in the vast majority of car accidents).
66. Funkhouser, supra note 29, at 437-38, 443-44 (discussing Google's attempts-through its self-driving cars-to eliminate human error in driving).
67. Again, this is an assumption, but because the vehicle's control system itself is so highly automated and continually monitors its own performance, it is likely that the vehicle's own data will shed considerable light on the cause of accidents. Indeed, most cars sold today contain "black boxes" that monitor the car's performance and often provide important clues in ascertaining the causes of accidents.
68. Jaclyn Trop, A Black Box for Car Crashes, N.Y. TIMES, July 21, 2013, at B1, available at http://www.nytimes.com/2013/07/22/business/black-boxes-in-cars-a-question-of-privacy.html. There is a related consideration that is worth noting: Highly autonomous cars will communicate with cars in their vicinity to ensure that a safe distance is maintained between the two vehicles. In that case, it may be that data from other, nearby vehicles may shed light on vehicle failures.
69. RAND REPORT, supra note 30, at 66-68, 79-81.
70. Robert B. Kelly & Mark D. Johnson, Defining a Stable, Protected and Secure Spectrum Environment for Autonomous Vehicles, 52 SANTA CLARA L. REV. 1271, 1310 (2012) (discussing "vehicle-to-vehicle collision avoidance" communications).
71. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 3(a) (1998) (providing for an inference based on concepts of res ipsa loquitor where the plaintiff can show that the product failure "was of a kind that ordinarily occurs as a product defect").
72. In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., __F. Supp. 2d__, 2013 WL 5763178 (C.D. Cal. Oct. 7, 2013).
73. Douglas A. Kysar, The Expectations of Consumers, 103 COLUM. L. REV. 1700, 1721 & nn.89-90 (2003). These sources and others make clear that an inference can take a plaintiff only so far. the plaintiff still has to prove that the failure was of the kind ordinarily seen with design defects. An otherwise inexplicable failure, which is not fairly described as "ordinary," would likely not qualify under this standard.
74. Larsen v. Gen. Motors Corp., 391 F.2d 495 (8th Cir. 1968) (applying Minnesota law and discussing apportionment of damages in automobile accidents cases).
75. DAVID G. OWEN, PRODUCTS LIABILITY LAW § 17.4, at 1094-100 (2005).
76. The law generally limits the liability of component part manufacturers absent proof that they participated in the design or manufacture of a finished product.
77. Davis v. Komatsu Am. Indus. Corp., 42 S.W.3d 34, 43 (Tenn. 2001) (holding that the maker of a robot used in can-making was not liable when the plaintiff's injury was likely caused by unsafe maintenance and other dangerous practices).
78. Kysar, supra note 36, at 1725 & n.109 (and authorities cited therein).
79. This proposal would entail application of a variation of "common enterprise" liability. As explained in detail below, I envision this as a doctrine that aims to force a group of companies that work together for a common end-here, to design and manufacture a driver-less car-to bear liability collectively when something goes wrong and injury ensues and when it is impossible to determine, let alone apportion, fault. In other words, as I envision it, common enterprise liability here would be a form of court-compelled insurance. The manufacturers and designers ("the enterprise") would jointly indemnify individuals injured by driver-less cars when it is impossible to determine fault. In the field of consumer protection, for instance, the Federal Trade Commission often invokes the "common enterprise" doctrine to seek joint and several liability among related companies engaged in fraudulent practices.
80. FTC v. Network Servs. Depot, Inc., 617 F.3d 1127, 1142-43 (9th Cir. 2010).
81. SEC v. R.G. Reynolds Enters., Inc., 952 F.2d 1125, 1130-31 (9th Cir. 1991).
82. FTC v. Tax Club, Inc., __F. Supp. 2d__, 2014 WL 199514, at *5 (S.D.N.Y. Jan. 17, 2014).
83. Common enterprise liability should not be confused with its first-cousin, "enterprise liability," which proposes a collective theory of liability for companies engaged separately in the same hazardous industry, when the identity of the responsible firm cannot be determined
84. OWEN, supra note 37, § 11.3, at 752. Compare Hall v. E.I. Du Pont De Nemours & Co., 345 F. Supp. 353 (E.D.N.Y. 1972) (invoking "enterprise" liability theory to hold the highly concentrated blasting cap industry collectively liable for injuries to children), with Sindell v. Abbott Labs, 607 P.2d 924, 935 (Cal. 1980) (rejecting enterprise liability theory)
85. James A. Henderson, Jr., Echoes of Enterprise Liability in Product Design and Marketing Litigation, 87 CORNELL L. REV. 958 (2002).
86. Gregory C. Keating, The Theory of Enterprise Liability and Common Law Strict Liability, 54 VAND. L. REV. 1285 (2001).
87. Kysar, supra note 36, at 1708 & n. 28 (collecting sources). Of course, if the number of manufacturers of driver-less vehicles was relatively small, and there were issues of identifying the manufacturer of a vehicle that caused significant harm, enterprise theory of liability might be viable in that situation as well.
88. According to one press report on the operation of a Google car, "[t]o gain control of the car [the driver] has to do one of three things: hit a red button near his right hand, touch the brake or turn the steering wheel." Markoff, War Machines, supra note 28. The article reports that during one lengthy test drive, the driver "did so twice, once when a bicyclist ran a red light and again when a car in front stopped and began to back into a parking space. But the car seemed likely to have prevented an accident itself."
89. Peter Valdes-Dapena, Thrilled and Bummed by Google's Self-Driving Car, CNN MONEY (May 18, 2012), http://money.cnn.com/2012/05/17/autos/google-driverless-car.
90. RAND REPORT, supra note 30, at 58-65, 68-69.
91. This discussion also does not address questions of the crashworthiness of the vehicle, since that question is entirely independent of the identity of the driver.
92. OWEN, supra note 37, Parts I & II. No doubt prompted by Google's development of a wholly autonomous driver-less car, there has been a spate of articles and student notes and comments addressing liability questions.
93. Beiker, supra note 33.
94. Funkhouser, supra note 29.
95. Bryant Walker Smith, supra note 29.
96. Kyle Colonna, Note, Autonomous Cars and Tort Liability, 4 CASE W. RES. J.L. TECH. & INTERNET 81 (2012).
97. Garza, supra note 29.
98. Julie Goodrich, Comment, Driving Miss Daisy: An Autonomous Chauffeur System, 51 HOUS. L. REV. 265 (2013).
99. Gurney, supra note 29.
100. 92 So. 2d 593, 596 (La. Ct. App. 1957).
101. Id. at 595-96.
102. Id. at 596.
103. On the duty of care, see generally RESTATEMENT (THIRD) OF TORTS: PHYSICAL & EMOTIONAL HARM § 7(a) (2010) ("[A]n actor ordinarily has a duty to exercise reasonable care when an actor's conduct creates a risk of physical harm.").
104. Whether programmers will also be subject to design claims is less clear. Computer code has not generally been considered a "product" but instead is thought of as a "service." As a result, to the extent that there are cases seeking compensation caused by allegedly defective software, those cases have ordinarily proceeded as breach of warranty cases under the Uniform Commercial Code rather than product liability cases
105. Motorola Mobility, Inc. v. Myriad France SAS, 850 F. Supp. 2d 878 (N.D. Ill. 2012) (case alleging defective software pleaded as a breach of warranty).
106. In re All Am. Semiconductor, Inc., 490 B.R. 418 (Bankr. S.D. Fla. 2013) (same).
107. Daniel B. Garrie, The Legal Status of Software, 23 J. MARSHALL J. COMPUTER & INFO. L. 711, 714-20 (2005).
108. David W. Lannetti, Toward a Revised Definition of "Product" Under the Restatement (Third) of Torts: Products Liability, 55 BUS. LAW. 799, 806-07 (2000). But those are typically cases between the software purchaser and provider. That dynamic appears to be changing, as increasingly software systems operate cars, trucks, planes and other machines, that, on occasion, malfunction and injure non-purchaser third parties. These plaintiffs allege that the product failure that caused their injury was a result of defectively designed or manufactured software, though it may be hard to ascertain the root cause. At the time of this writing, there are product liability cases alleging that software defects "caused" serious accidents, including those involving deaths. Perhaps most notable are the many defective software design claims being brought in In re Toyota Motor Corp. Unintended Acceleration Mktg, Sales Practices, & Prod. Liab. Litig., __F. Supp. 2d__, 2013 WL 5763178 (C.D. Cal. Oct. 7, 2013), a multi-district litigation matter in which the plaintiffs allege, inter alia, that certain vehicles manufactured by Toyota have a software defect that causes, at times, the vehicles to accelerate notwithstanding measures the drivers take to stop the vehicle. Typically, of course, the software is licensed into the vehicle by the manufacturer, and thus in the case of an inexplicable failure the plaintiff can always bring suit against the manufacturer, which, in turn, can seek contribution or indemnification from the software provider under breach of warranties and other contract-based theories.
109. Of course, these scenarios assume that the car was driving at a speed (say twenty miles per hour) within the speed limit and with due attention to the then-current driving conditions (surrounding traffic, road conditions, weather, time of day, and so forth). See generally RAND REPORT, supra note 30, at 59 (addressing the technological aspects of how a driver-less car would respond to these kinds of scenarios).
110. I have no intention of joining the debate over the proper formulation of the design defect test. suffice it to say that many eminent tort scholars have waded into this thicket and have emerged arguing for a wide variety of approaches.
111. Richard A. Epstein, Products Liability: The Search for the Middle Ground, 56 N.C. L. REV. 643, 647-49 (1978) (describing judicial confusion in assessing design defects).
112. W. Page Keeton, Product Liability-Design Hazards and the Meaning of Defect, 10 CUMB. L. REV. 293, 298 n.23 (1979) ("The search for the universally acceptable definition of defect has been the most elusive one in the products liability field.").
113. Kysar, supra note 36, at 1709 & n.30.
114. Joseph W. Little, The Place of Consumer Expectations in Product Strict Liability Actions for Defectively Designed Products, 61 TENN. L. REV. 1189, 1190 (1994) ("The difficult and politically contentious cases are those that involve allegations of defective design.").
115. Marshall S. Shapo, In Search of the Law of Products Liability: The ALI Restatement Project, 48 VAND. L. REV. 631, 638 (1995) ("[A] crucial aspect of products liability law-perhaps the core concept, if any one idea may be described that way-lies in the definition of defect.").
116. Marshall S. Shapo, Products at the Millennium: Traversing a Transverse Section, 53 S.C. L. REV. 1031, 1033 (2002) ("However divided analysts of products law may be about definitions, most would agree that the heart of the matter in products liability is the concept of defect.").
117. David G. Owen, Design Defects, 73 MO. L. REV. 291, 292 (2008) ("The quest for understanding design defectiveness perennially vexes courts and accomplished products liability lawyers attempting to unravel design defect problems. delights law clerks, young associates, and law students, furnishing them with an occasion to display their erudition. and provides fertile grist for law professors aspiring for the renown that accompanies discovery of the key to any riddle wrapped in a mystery inside an enigma.") (footnotes omitted).
118. RESTATEMENT (SECOND) OF TORTS § 402A cmt. g (1965).
119. Kysar, supra note 36, at 1712-13.
120. The Restatement (Third) of Torts formally abandons the consumer expectations test for design defect claims.
121. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. g (1998) ("[C]onsumer expectations do not constitute an independent standard for judging the defectiveness of product designs."). Many commentators suggest, however, that the risk-utility test adopted by the new Restatement permits consideration of consumer expectations, and, in any event, many jurisdictions continue to permit cases to proceed under a consumer expectations theory.
122. Potter v. Chi. Pneumatic Tool Co., 694 A.2d 1319, 1333 (Conn. 1997) (continuing to permit cases to proceed under the consumer expectations test).
123. Kysar, supra note 36, at 1726-29 & nn.111-25.
124. Owen, supra note 54, at 335, 342.
125. For instance, in Potter v. Chicago Pneumatic Tool Co. the Connecticut Supreme Court held that Although today we continue to adhere to our long-standing rule that a product's defectiveness is to be determined by the expectations of an ordinary consumer, we nevertheless recognize that there may be instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety. 694 A.2d at 1333. Accordingly, the Court adopted a new test where complex products are involved to incorporate elements of a risk-utility test. The governing test is as follows: [I]n determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue. Id. (internal quotations omitted).
126. Seattle-First Nat'l Bank v. Tabert, 86 Wash. 2d 145, 542 P.2d 774 (1975) (earlier adoption of the same test by the Washington State Supreme Court).
127. Gurney, supra note 29, at 260-62.
128. Owen, supra note 54, at 346-53.
129. RESTATEMENT (SECOND) OF TORTS § 402A(1) (1965).
130. Greenman v. Yuba Power Prods., Inc., 377 P.2d 897, 900 (Cal. 1963) (Traynor, J.) ("A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.").
131. RESTATEMENT (SECOND) OF TORTS § 402A cmt. i.
132. Kysar, supra note 36, at 1709 & nn.51-52.
133. Giglio v. Conn. Light & Power Co., 429 A.2d 486, 488 (Conn. 1980) (internal quotations omitted).
134. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) (1998).
135. Connelly v. Hyundai Motor Co., 351 F.3d 535, 541 (1st Cir. 2003) (noting that, under New Hampshire law, the jury could have reasonably found that the airbag was not defective: "[o]n balance, the benefit to the public of including the overly aggressive airbag system in the Sonata outweighed the danger caused by the airbag system (because the system saved many more lives than it took)").
136. Owen, supra note 54, at 330-36.
137. Soule v. Gen. Motors Corp., 882 P.2d 298, 308 (Cal. 1994) (noting that the ordinary consumer expectations test is appropriate when the everyday experience of the particular product's users permits the inference that the product did not meet minimum safety expectations).
138. Of course the manufacturer would have defenses to liability, but given the presence of a prevailing industry standard and the vehicle's evident non-compliance with that standard, the burden of proof would likely shift to the manufacturer.
139. Richard C. Ausness, "Fasten Your Seatbelt Orville!": Exploring the Relationship Between State-of-the-Art, Technological and Commercial Feasibility, and the Restatement's Reasonable Alternative Design Requirement, 45 IND. L. REV. 669, 686-89 (2012).
140. O'Brien v. Muskin Corp., 463 A.2d 298, 302 (N.J. 1983), overruling recognized by Dewey v. R.J. Reynolds Tobacco Co., 577 A.2d 1239 (N.J. 1990).
141. Among the criticisms leveled at the consumer expectations test is that it is indeterminate, or to put a finer point on it, "so vague as to be lawless."
142. James A. Henderson, Jr. & Aaron D. Twerski, Achieving Consensus on Defective Product Design, 83 CORNELL L. REV. 867, 882 (1998). The same authors have made the same claim repeatedly.
143. James A. Henderson, Jr. & Aaron D. Twerski, Drug Designs are Different, 111 YALE L.J. 151, 178 (2001).
144. Beiker, supra note 33, at 1149 (pointing out that driver error is "by far (95%) the most common factor implicated in vehicle accidents").
145. Markoff, War Machines, supra note 28.
146. Chunka Mui, Will Auto Insurers Survive Their Collision with Driverless Cars? (Part 6), FORBES (Mar. 28, 2013), http://www.forbes.com/sites/chunkamui/2013/03/28/will-auto-insurers-survive-their-collision-with-driverless-cars-part-6/.
147. The law has never treated industry custom as even the de facto standard of care. Eighty years ago, Learned Hand's famous decision in The TJ Hooper, 60 F.2d 737, 740 (2d Cir. 1932), made clear that a negligence standard should not strictly be set by industry custom because "a whole calling may have unduly lagged in the adoption of new and available devices." In most jurisdictions, the defendant is permitted to show that the product's design was "state-of-the-art" (that is, what is technologically feasible, not just industry custom) to rebut claims of defect.
148. Potter v. Chi. Pneumatic Tool Co., 694 A.2d 1319, 1346-47 (Conn. 1997) (collecting cases). Although not conclusive, that evidence is highly probative. Id. Mrs. Arnold might have to prove that the design, although meeting industry's custom, was not in fact state-of-the-art and further improvements were technologically achievable.
149. The California Supreme Court in Soule v. General Motors Corp., 882 P.2d 298, 309-10 (Cal. 1994), for example, suggests that using a consumer expectations test to determine liability when "esoteric circumstances" and "complicated design considerations" are present would be improper. Mrs. Arnold's case would likely fall into that category.
150. Potter, 694 A.2d at 1333.
151. As the Supreme Court of California drove home in Barker v. Lull Engineering Co., 573 P.2d 443, 451 n.7 (Cal. 1978), relying on the consumer expectations test can undermine incentives for manufacturers to enhance the safety features of their products: "The flaw in the Restatement's analysis, in our view, is that it treats such consumer expectations as a 'ceiling' on a manufacturer's responsibility under strict liability principles, rather than as a 'floor.'" The Barker court formulated the applicable design defect test in this way: [A] product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.
152. Id. at 455-56.
153. Barker was explained and reaffirmed in Soule, 882 P.2d at 308 n.4.
154. Potter, 694 A.2d at 1333-34.
155. Jon D. Hanson & Douglas A. Kysar, Taking Behaviorism Seriously: A Response to Market Manipulation, 6 ROGER WILLIAMS U. L. REV. 259, 324-70 (2000).
156. Jon D. Hanson & Douglas A. Kysar, Taking Behaviorism Seriously: Some Evidence of Market Manipulation, 112 HARV. L. REV. 1420 (1999).
157. This balancing test may itself be troublesome because it asks jurors to place values on things that do not come with an attached price tag-including the "value" of human life, injury and suffering, and the "value" to be gained or sacrificed by design modifications. Making matters worse, jurors not only have to assign values, they then have to weigh them against one another and pick a winner and a loser. For a critique of using economic modeling to make such choices
158. FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING (2004).
159. Although there was much critical commentary on the burdens that the risk-utility test would place on plaintiffs
160. Kysar, supra note 36, at 1721-22 & n. 84 (collecting authorities), the tools for lessening those burdens would not apply here. They include cases (a) where the product defect was one in which the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design Soule, 882 P.2d at 308 (emphasis in original), or (b) where the product defect was of the kind that "ordinarily occurs" so it is fair to base liability on a res ipsa loquitor theory. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 3(a) (1998) (providing for an inference based on concepts of res ipsa loquitor where the plaintiff can show that the product failure "was of a kind that ordinarily occurs as a result of product defect").
161. Kysar, supra note 36, at 1721 & nn.89-90. supra note 67 and accompanying text on the availability of a "state-of-the-art" defense.
162. Greenman v. Yuba Power Prods. Inc., 377 P.2d 897 (Cal. 1963).
163. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(a) ("[A] manufacturing defect [exists] when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product ."). In the past, product manufacturers ordinarily were held strictly liable for defectively manufactured products.
164. RESTATEMENT (SECOND) OF TORTS: PRODUCTS LIABILITY § 402A (1965).
165. As a general matter, in cases where a product or component is manufactured in a way that fails to comport with the defendant's own intended design specifications, courts routinely find liability.
166. RICHARD A. EPSTEIN, MODERN PRODUCTS LIABILITY LAW 70 (1980).
167. Kysar, supra note 36, at 1709 & n.29.
168. There are often questions about whether the manufacturer or service provider that maintained the part is responsible for the defect, but that issue has no bearing here. See supra note 37 and accompanying text. Once driver-less cars enter the market, however, maintenance may become a significant issue. As Anderson's RAND Report observes, many of the key sensors degrade over time, software will need to be updated regularly, and GPS systems will have to be updated constantly to reflect road openings and closings. RAND REPORT, supra note 30, at 66. Although the car itself will play a key role in continually monitoring the updating and performance of its component parts, other entities will play a role as well in ensuring that these components are maintained and functioning properly, potentially complicating the liability questions.
169. Ferguson v. Bombardier Service Corp., 244 F. App'x 944 (11th Cir. 2007), the court rejected a manufacturing defect claim against the manufacturer of an autopilot system in a military cargo plane that suffered a catastrophic crash while the plane was on autopilot. The plaintiffs cited some evidence that the autopilot failed to function properly. But the court found equally credible the defense theory that the plane was improperly loaded, so much so that a strong gust of wind caused the plane to crash-a theory consistent with the information salvaged from the aircraft's flight data recorder. And in Nelson v. American Airlines, Inc., 70 Cal. Rptr. 33 (Cal. Ct. App. 1968), the plaintiff was a passenger on an American Airlines flight who was injured when the plane suddenly descended. One theory was that when the pilots engaged the autopilot, a fault in the autopilot caused the sudden descent. The court applied the doctrine of res ipsa loquitor to find an inference of negligence by American Airlines, but ruled that the inference could be rebutted if American Airlines could show that the autopilot did not cause the accident or that an unpreventable cause triggered the accident. The court said that a defect in the autopilot could have caused the accident, as well as the negligent maintenance of the device. Accordingly, the court reversed the lower court's ruling in favor of American and remanded the action for further proceedings
170. Payne v. ABB Flexible Automation, Inc., No. 96-2248, 1997 WL 311586 (8th Cir. June 9, 1997) (per curiam).
171. Many of the cases addressing this informational defect are those where airplane manufacturers are alleged to have failed to provide adequate training to pilots in the safe use of their aircraft
172. Glorvigen v. Cirrus Design Corp., 796 N.W.2d 541 (Minn. Ct. App. 2011) (considering but ultimately rejecting failure-to-train claim).
173. Driver v. Burlington Aviation, Inc., 430 S.E.2d 476 (N.C. Ct. App. 1993).
174. Berkebile v. Brantly Helicopter Corp., 311 A.2d 140, 142 (Pa. Super. Ct. 1973), aff'd, 337 A.2d 893 (Pa. 1975).
175. Kysar, supra note 36, at 1761-82.
176. Owen, supra note 54, at 336-53.
177. Indeed, in the multidistrict litigation (MDL) case against Toyota for personal injuries allegedly resulting from sudden acceleration, the evidence shows that Toyota received upwards of 60,000 complaints about sudden acceleration in certain of its vehicles. In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., __F. Supp. 2d__, 2013 WL 5763178, at *26 n.66 (C.D. Cal. Oct. 7, 2013).
178. Sharon Silke Carty, Toyota's Sudden Acceleration Problem May Have Been Triggered By Tin Whiskers, HUFFINGTON POST (Jan. 22, 2012), http://www.huffingtonpost.com/2012/01/21/toyota-sudden-acceleration-tin-whiskers_n_1221076.html (reporting that tiny threads of tin had developed in areas in which they might conduct electricity to the systems that control acceleration, and pointing out that this problem had been "implicated in crippling defects besetting a range of equipment, including communications satellites, pacemakers, missiles and nuclear power plants").
179. In re Toyota Motor Corp., 2013 WL 5763178, at *34-35 (discussing several of the plaintiffs' theories of causation).
180. This settlement excluded the personal injury cases part of the multidistrict litigation and involved a class action involving defect claims for owners who sought damages for the diminished value of their vehicles and certain repairs.
181. Jessica Dye, Toyota Acceleration Case Settlement Gets Final OK, INS. J. (July 22, 2013), http://www.insurancejournal.com/news/national/2013/07/22/299154.htm.
182. Greg Risling, Toyota Tackles Acceleration Lawsuits. Questions Remain, USA TODAY (Jan. 21, 2013), http://www.usatoday.com/story/money/cars/driveon/2013/01/21/toyota-sudden-acceleration-lawsuits/1851813/.
183. TOYOTA ECONOMIC LOSS SETTLEMENT WEBSITE, http://www.toyotaelsettlement.com (last visited Feb. 18, 2014) (laying out terms and conditions of settlement).
184. Jacklyn Trop, Toyota Seeks Settlement for Lawsuits, N.Y. TIMES, Dec. 14, 2013, at B3, available at http://www.nytimes.com/2013/12/14/business/toyota-seeks-settlement-for-lawsuits.html.
185. Ken Bensinger, Toyota Looks to Settle Sudden-Acceleration Lawsuits, L.A. TIMES (Dec. 12, 2013), http://articles.latimes.com/2013/dec/12/business/la-fi-toyota-settlement-20131213. This settlement involves personal injury claims resulting from accidents allegedly caused by sudden acceleration, which have been consolidated in In re Toyota Motor Corp., 2013 WL 5763178. These settlement negotiations are potentially nearing a final resolution.
186. Jaclyn Trop & Ben Protess, Toyota in Talks on Final Settlements Over Car Recalls, N.Y. TIMES (Feb. 9. 2014), http://www.nytimes.com/2014/02/10/business/toyota-in-talks-on-final-settlements-over-car-recalls.html?hpw&rref=automobiles.
187. Estate of Edward W. Knoster v. Ford Motor Co., 200 F. App'x. 106, 114 (3d Cir. 2006) (applying New Jersey law and finding that section three of the Restatement (Third) of Torts preserved the res ipsa loquitor inference so that sometimes when a product fails, "'common experience' indicates it would not have done so absent a defect").
188. Bloomberg, Toyota Loses First Acceleration Lawsuit, Must Pay $3 Million, AUTOMOTIVE NEWS (Oct. 24, 2013), http://www.autonews.com/article/20131024/OEM11/131029935#axzz2r8ypeVIJ (reporting that an Oklahoma jury awarded $3 million in actual damages and Toyota settled the punitive damage claim for an undisclosed amount in a sudden acceleration case resulting in injury to the driver and the death of a passenger). The court presiding over the multidistrict litigation involving personal injury claims applied this rationale in rejecting Toyota's claim for summary judgment in one of the MDL cases (which may have influenced Toyota's decision to settle all of these claims). The court said: Toyota's Motion for Summary Judgment is premised on the uncontroverted fact that Plaintiff has been unable to identify a precise software design or manufacturing defect and point to physical or otherwise traceable evidence that the defect actually caused the Camry throttle to open from an idle position to a much wider angle without analog input from the driver via the accelerator pedal. To a lesser extent, it is also premised upon the fact that Plaintiff cannot prove the actual failure of Toyota's fail-safe mechanisms in the Camry on the day of the collision. As explained more fully below, Plaintiff's burden at the summary judgment stage is not so onerous.
189. Essentially, Toyota asks the Court to conclude that the only reasonable inference that may be drawn from the volumes of evidence proffered by the parties is that Mrs. St. John mistakenly applied the accelerator pedal instead of the brake pedal. The Court cannot so conclude. As Plaintiff points out, and as detailed by the Court more fully below, Mrs. St. John's testimony, together with other evidence, much of it expert evidence, support inferences from which a reasonable jury could conclude that the Camry continued to accelerate and failed to slow or stop despite her application of the brakes.
190. In re Toyota Motor Corp., 2013 WL 5763178, at *33.
191. Of course, one might suppose that if the trailing vehicle were also driver-less, the two cars would be communicating course, position, and speed to one another and the trailing vehicle would thus leave sufficient room between the vehicles to stop safely even in an emergency.
192. Marcus, supra note 28 (using a slightly different hypothetical to demonstrate the moral questions raised by driver-less vehicles).
193. In testing prototypes of war-fighting robots, one study cited as a potential threat modern war robots that-like HAL-could "turn on" their human creators, in part as a mode of self- preservation. See Mick, supra note 23.
194. PAGALLO, supra note 17, at 152-53.
195. Solum, supra note 27.
196. Mercedes Benz Safety, MERCEDES BENZ, http://www.mbusa.com/mercedes/benz/safety (last visited Feb. 17, 2014) (describing various safety features available on Mercedes automobiles).
197. Although the frequency of automobile crashes is slowly declining in the United States, there were still more than 5.3 million crashes in 2011, resulting in more than 2.2 million injuries and 32,000 fatalities. Alcohol was a factor in 39 percent of the fatal crashes.
198. RAND REPORT, supra note 30, at xiv.
199. Lest there be any doubt, my argument is not based on notions of a "no-fault" liability system, that is, a system that substitutes mandatory insurance and eliminates access to the judicial system. My proposal is a strict liability regime implemented by the courts. Although the idea of "no fault" systems took hold in the 1970s and 1980s, and was expected to drive down insurance costs by limiting the transaction costs related to litigation, it is by now apparent that those systems have not worked as envisioned.
200. JAMES M. ANDERSON et al., THE U.S. EXPERIENCE WITH NO-FAULT AUTOMOBILE INSURANCE: A RETROSPECTIVE, at xiii (2010), available at http://www.rand.org/pubs/monographs/MG860. It is likely, however, that the introduction of driver-less cars will shift liability from the "driver" to the manufacturer, and that shift may trigger a resurgence of interest in "no fault" insurance regimes.
201. For that reason, it does not seem fair to saddle the vehicle's owner with the liability. The scenario assumes that the owner's conduct has nothing at all to do with the accident. Nonetheless, if the risk of accidents involving driver-less cars is as low as some experts forecast, then the costs of insuring the vehicle may be so low that it is simply easier for all concerned to make the owner, through mandatory insurance (as is the case in most states already), the responsible party. Moreover, one could easily envision a system where private ownership of vehicles becomes a relic. Instead, companies (or cities or smaller communities) would own fleets of driver-less cars and dispatch them when requested, the way we now use cab services or Uber. This approach could also be used to promote ride-sharing, thereby further reducing the demand for vehicles, fuel costs, and traffic congestion.
202. supra notes 37-39 and accompanying text. There is an additional point that might cut in favor of having the manufacturer bear the costs. If one accepts the principles of "Moore's Law"-that computing power doubles every eighteen months-we can expect that the costs of the software components will decrease or remain stable over time while the cost of the other components of the vehicle will continue to rise. If this prediction is borne out, then the manufacturer will increasingly be in the best position to pay, as the software will be an ever decreasing part of the vehicle's overall cost.
203. FTC v. Tax Club Inc., __F. Supp. 2d__, 2014 WL 199514, at *5 (S.D.N.Y. Jan. 17, 2014).
204. FTC v. Network Servs. Depot, Inc., 617 F.3d 1127, 1142-43 (9th Cir. 2010).
205. SEC v. R.G. Reynolds Enters., Inc., 952 F.2d 1125, 1130 (9th Cir. 1991). To determine whether a common enterprise exists, the court considers factors such as common control. the sharing of office space and officers. whether business is transacted through a maze of interrelated companies. the commingling of corporate funds and failure to maintain separation of companies. unified advertising. and evidence that reveals that no real distinction exists between the corporate defendants. FTC. v. Grant Connect, LLC, 827 F. Supp. 2d 1199, 1216 (D. Nev. 2011) (quoting FTC v. Nat'l Urological Grp., Inc., 645 F. Supp. 2d 1167, 1182 (N.D. Ga. 2008)).
206. There are other liability systems that are similar to the one suggested here. One form of "enterprise liability" is the system underlying the National Childhood Vaccine Injury Act of 1986, which sets up a no-fault system of compensation for children injured by certain vaccines, with funding mainly from the companies that make and sell the vaccines.
207. 42 U.S.C. §§ 300aa-1-300aa-34 (2006). The Act imposes a tax on the sale of vaccines to create a fund to pay for injuries attributable to vaccines. See 26 U.S.C. § 9510 (2006) (establishing the Vaccine Injury Compensation Trust Fund). If the plaintiff determines that the compensation offered by the program is inadequate, the plaintiff may then file suit against the manufacturer, but most cases are resolved without litigation.
208. Bruesewitz v. Wyeth LLC,__U.S.__, 131 S. Ct. 1068 (2011).