Driverless Cars and Other Emotional Coping Diversions
Earlier this week, I wrote an unusually (for me) emotional column in which I described the toll that I have been feeling in the weeks since news broke of Hamas's October 7 terrorist attacks in Israel. That essay followed two columns that I wrote last week in which I tried to maintain at least some level of optimism about what might yet happen, although every day now looks worse than the one before.
In any case, I almost certainly will write more about that horrible situation in the near future, but for now, I have decided to engage in some emotional self-care by diverting my attention to something more uplifting. And what could be more uplifting than describing a couple of instances in which I have been wrong?
I am engaging in this exercise in part because I have had far too many occasions to issue I-told-you-so columns about the death of democracy -- columns that are the opposite of victory laps but are undeniably instances in which I remind readers that I was right. Horribly, regrettably right. But right. I have asked my research assistants to read my backlog of columns and assemble lists of predictions or other assertions that I have issued that were wrong. This is important in large part because it is so much healthier to talk about being wrong.
I will only briefly summarize the first example, because I wrote about it relatively recently. A bit less than two years ago, I wrote, "Vulture Capitalism Comes to Your Cul-de-Sac," in which I updated the post-Great Recession trend in which single-family homes are owned, managed, and rented to the public by large, profit-seeking investors.
The last big downturn in the US economy (not including the one-off oddity of the Covid plunge and rapid recovery) was caused in large part by the collapse of a housing bubble. That cataclysm, in turn, saw millions of people lose all of the equity in their homes, where that equity constituted in some cases the entirety of the former homeowners' life savings. This meant that people who expected to retire in some comfort were suddenly looking at extra years of work, followed by almost total reliance on Social Security benefits. Because I write so often about Social Security, explaining that it is solvent and is not "going bust," I never argued that people would be left destitute in their old age by losing their homes; but I did say that these people were looking at a much lower standard of living in their Golden Years than they had expected.
This, in turn, shone a light on what should be thought of as a scandal in financial advising. The same experts and politicians who tell everyone that they should build up balanced and diversified savings portfolios turn around and tell everyone to buy a house rather than renting. In other words, the advice is: "Diversify, diversify, diversify, but make your biggest (and possibly only) investment the least diversified asset of all time: a house." Because of that, I argued that it is a bad idea to encourage people to own rather than rent. There are a lot of sub-arguments that can confuse (or even anger) people, but the bottom line was that people would be better off -- at least as a rebuttable presumption -- renting and saving than buying and building equity.
My 2021 column revisited that issue by essentially admitting that I had been gullible. Or, to be a bit more kind to myself, my arguments a decade ago focused on the positive possible future that a nation of renters could inhabit, whereas by the early 2020's it had become clear that various levels of government had allowed financial predators to buy up the housing stock but had failed to put in place the consumer/renter protections necessary to make the system work well for everyone.
It remains true that we could have transitioned to a world in which people could enter into rental contracts of any length (with buyout clauses and other standard escape hatches), which is largely the way Zurich and other major global cities work. Unfortunately, we did not create that world, which has left many middle-class and would-be middle class people at the mercy of vulture capitalists when procuring the most important necessity of life, a necessity that carries with it so many transaction costs and transition barriers that the usual "let the market decide the winners and losers" logic becomes a cruel joke.
In short, I was wrong. I was wrong not in saying that there was a way to do this right, because there is a way to do this right. My error was in naively believing that we would set up the legal and regulatory regime in a way that even remotely allowed a smoothly functioning win-win market to emerge and thrive. And that is not just wrong but tragically so.
So that is the first of my two examples for today. The second, as the headline for this column suggests, has to do with driverless (or autonomous, or self-driving) cars. To get a sense of where I am going with this, consider that I almost wrote this column under the headline: "Techno-Futurism, Gullibility, and Reality -- or, I Was Wrong." As it happens, I was not only wrong about driverless cars, but I was wrong in the same way that I was wrong about mass house rentals, believing that a new market would emerge that would be reasonably well regulated and allow for a market-based win-win.
Much to my surprise, it seems that I have written only one column about driverless cars on Dorf on Law, and none on Verdict. In late 2016 (also a time when I was trying to avoid thinking about a depressing political situation), I published, "A Mindless Attack on Driverless Cars." Although most of what I wrote there holds up (largely because I trained my fire on a particularly silly op-ed that had run in The New York Times), I did write this:
None of this is to say that politicians and regulators should simply let the companies write the rules. Of course the companies will "balk at regulation," as the op-ed's author reports. There is always a need for public policy to constrain the excesses and arrogance of people (an especially plentiful breed in Silicon Valley) who view themselves as the geniuses who will save humanity. But again, vague assertions that politicians seem excited about driverless technology are hardly proof that they are going to roll over and allow Google to sell [unsafe driverless] cars.
In the last paragraph of the column, I added: "There are smart, motivated people who are making driverless technology inevitable. Important questions need to be posed and answered along the way."
Zoinks. Pollyanna had nothing on me! To be clear, this was long before we learned that it was quite wrong to believe the hype coming from the world's richest tech bro about his driverless cars (or anything else). And again, I never wrote that driverless cars would inevitably be safe, only that the combination of public leeriness about driverless cars and reasonably competent regulations (based on an at least minimally sensible statutory foundation) would allow the new technological innovations to significantly reduce the 45,000-deaths-per-year current carnage on the highways.
Like the owners-to-renters situation, however, I was far too ready to minimize just how much the big money would be able to overwhelm sensible regulations. Possibly worse, even though the press still does talk about deaths caused by the current versions of driverless cars, the public seems numbed to the idea that they can do anything to stop it.
How bad is it? One recent Washington Post article is framed around the story of the family of the victim of a deadly crash. They are suing the company that makes Autopilot, the software that was engaged when the accident occurred. The company's defense amounts to the standard user-error approach, essentially selling customers on the idea that the tech is much better than it is, and then blaming the customer for not following all of the instructions. And of course, the company relies on a boilerplate waiver, arguing that the driver agreed to the "terms and conditions of operating on Autopilot and was provided with an owner’s manual, which together warn of the technology’s limitations and state that the driver is ultimately responsible for the trajectory of the car."
Yes, we are supposed to believe that it is reasonable for the company to say, "Well, it was in the owner's manual, so it's not our fault." This is especially infuriating to me, because I recently rented a car for a 200-mile trip, only to arrive at Hertz and learn that there were only electronic vehicles available. Hertz emailed me instructions for operating the car that were illegible on an iPhone, which left me driving a car without knowing whether I might be doing something very wrong.
This was not a driverless situation, but it was legally similar in that the company could say that the customer received all of the necessary info, and no one was holding a gun to my head to prevent me from walking away from the deal. (There are very good reasons that I felt forced into the situation, but it is true that the guys at the desk were not threatening me. This being Canada, they were probably not even armed.) This boils down to the standard corporate defense, expressed aptly in the film "Animal House": "Ya fucked up. Ya trusted us!"
In any event, The Post's article notes that, if the plaintiffs lose this and a series of similar cases, the company "could continue deploying the evolving technology with few legal consequences or regulatory guardrails." Precisely. A recent op-ed in The New York Times further notes that San Francisco's city government (fully captured by the tech industry in Northern California) is allowing driverless cars to beta test on the city's streets, which is not only causing accidents but has resulted in emergency vehicles being blocked or delayed when the human-free cars do not give right of way to horns and flashing lights. The op-ed notes:
There are no federal software safety testing standards for autonomous vehicles ... . The National Highway Traffic Safety Administration regulates the hardware (such as windshield wipers, airbags and mirrors) of cars sold in the United States. And the states are in charge of licensing human drivers. To earn the right to drive a car, most of us at some point have to pass a vision test, a written test and a driving test.
The A.I. undergoes no such government scrutiny before commanding the wheel. In California, companies can get a permit to operate driverless cars by declaring that their vehicles have been tested and the “manufacturer has reasonably determined that is safe to operate the vehicle.”
The author adds: "There’s an irony here: So many headlines have focused on fears that computers will get too smart and take control of the world from humans, but in our reality, computers are often too dumb to avoid hurting us."
What I find especially worrisome about this is that it is often pedestrians who pay the price. We already do not take old-fashioned vehicular homicide seriously, with most laws and enforcement designed to keep cars moving as quickly as possible. But with driverless cars, the pedestrian situation is worse, because we cannot even look into the car and see whether the driver is paying attention. Moreover, when I cross a street, I assume that cars that are slowing down will continue to slow down, not suddenly speed up. To put it differently, as bad as human drivers are, they are bad in ways that we pedestrians know and can generally anticipate -- or at least, we can do those things better when dealing with human drivers than with driverless cars.
As far as I know, Toronto has not authorized driverless cars (yet?). And although the Canadian government generally takes a more aggressive approach to regulation, this is still a city that -- for all of its other charms -- is still one of the worst cities for traffic in the world. Outside of the core city, in fact, it might as well be Houston. The politics of transit here are as skewed as anywhere else in North America. What I worry about is that even those of us who want to live car-free (and are in fortunate enough economic circumstances to make that happen) will be affected -- euphemism alert! -- by the rush to allow driverless cars onto our roads and streets.
In any event, the point here is not to predict when driverless technology might improve to the point of being acceptable. Given that the X guy has been saying for at least ten years that we are one, two, or five years away from having driverless cars at scale (similar to Donald Trump's rolling promises to issue a new health care plan "in two weeks"), it might never happen at all. That is, notwithstanding my desire to believe that driverless cars will replace human-guided cars in the future, they might not. Even if they do, getting from here to there will be a dangerous road indeed.
Naivete squashed. Ego brought (a bit) back under control. Several hours spent thinking about something less depressing than the slaughter of innocents. Mission accomplished.