Marchant on Swords and Shields: Impact of Private Standards in Technology-Based Liability

Gary E. Marchant (Arizona State University – College of Law) has posted “Swords and Shields: Impact of Private Standards in Technology-Based Liability” on SSRN. Here is the abstract:

Private voluntary standards are playing an ever greater role in the governance of many emerging technologies, including autonomous vehicles. Government regulation has lagged due to the ‘pacing problem’ in which technology moves faster than government regulation, and regulators lack the first-hand information that is mostly in the hands of industry and other experts in the field who often participate in standard-setting activities. Consequently, private standards have moved beyond historical tasks such as inter-operability to now produce quasi-governmental policy specifications that address the risk management, governance, privacy risks of emerging technologies. As the federal government has prudently concluded that promulgating government standards for autonomous vehicles would be premature at this time and may do more harm than good, private standards have become the primary governance tool for these vehicles. A number of standard-setting organizations, including the SAE, ISO, UL and IEEE have stepped forward to adopt a series of inter-locking private standards that collectively govern autonomous vehicle safety. While these private standards were not developed with litigation in mind, they could provide a useful benchmark for judge and juries to use in evaluating the safety of autonomous vehicles and whether compensatory and punitive damages are appropriate after an injury-causing accident involving an autonomous vehicle. Drawing on several decades of relevant case law, this paper argues that a manufacturer’s conformance with private standards for autonomous vehicle safety should be a partial shield against liability, whereas failure to conform to such standards should be a partial sword used by plaintiffs tor lack of due care.