Regulation and the Risk of Inaction

Publication Type: 
Publication Date: 
June 2, 2015


This chapter begins with two fundamental questions: How should risk be allocated in the face of significant uncertainty—and who should decide? Its focus on public actors reflects the significant role that legislatures, administrative agencies, and courts will play in answering these questions, whether through rules, investigations, verdicts, or other forms of public regulation. The eight strategies discussed in this chapter would in effect regulate that regulation. They seek to ensure that those who are injured can be compensated (by expanding public insurance and facilitating private insurance), that any prospective rules develop in tandem with the technologies to which they would apply (by privileging the concrete and delegating the safety case), that reasonable design choices receive sufficient legal support (by limiting the duration of risk and excluding the extreme), and that conventional driving is subject to as much scrutiny as automated driving (by rejecting the status quo and embracing enterprise liability).