Trial attorneys often play a valuable role in bringing litigation on behalf of victims of negligence or other wrongdoings. Sure, even so-called “ambulance chasers” create social value by standing ready to help real victims mitigate damages. However, trial lawyers often give themselves a bad name with aggressive tactics in trolling for alleged victims, assigning tenuous blame, and pressing for inflated damages.

In an act of hypocrisy (not to mention greed and bad faith), The American Institute for Justice (AIJ), which is the trial attorney’s lobby, has taken a stand against autonomous vehicles (AVs). The link goes to a hair-raising post on the topic by Alex Tabarrok on the Marginal Revolution blog. Well, it frizzed my hair a bit anyway. Hence my coverage here.

Through AIJ, trial attorneys have opposed federal legislation that would prohibit state and local governments from imposing “unreasonable restrictions” on AVs, and that would create a more uniform legal environment for AVs. Of course, it’s reasonable to ask whether the proposed legislation is consistent with federalist principles. Some might argue that regulation of AVs is best left to voters at the local or state levels. After all, decisions about who can and cannot drive a vehicle are generally made at the state level. However, as a practical matter, the issues of vehicle/road safety transcend state boundaries.

But what of AVs and safety? A certain level of phobia surrounds AVs, partly due to their novelty. AVs are often the focus of media stories when they behave in haphazard ways. This was the case during a recent power outage in San Francisco, when a few intersections became clogged with “confused” robotaxis. Those kinds of episodes are uncommon and are getting even less common.

Tabarrok notes that AVs have a proven track record of dramatically greater safety than human drivers:

“Roughly 37,000–40,000 Americans die in auto accidents every year. We now have large‑scale, real‑world evidence—from Waymo and a joint analysis with Swiss Re—that driverless operations can be substantially safer than matched human driving within their current operating domains. The latest data show that over 220 million miles driven, Waymo vehicles–in Los Angeles, San Francisco, Phoenix, Austin and Atlanta–have 94% fewer serious injuries, 82% fewer air bag deployments, and 93% fewer pedestrian injuries. The evidence is not fully independent, but it is unusually transparent, large‑scale evidence.”

So it’s appalling to hear that trial attorneys are taking a formal stand against less restrictive regulation of a technology already shown to dramatically reduce harms on roadways in trial cities. More broadly, this also applies to personal vehicles with a self-driving option, like Teslas.

What do trial attorneys stand to lose from more liberalized regulation of AVs? Tabarrok says:

“The trial lawyers earn a huge amount litigating ordinary auto accidents–Annual U.S. auto insurance payouts (liability + PIP/MedPay) are on the order of $180–220B and trial lawyers are very eager to retain the right to sue car manufacturers for product liability. “

He should probably have qualified that statement. Not all payouts spring from litigation or even legal representation. In fact, Grok cites sources indicating that attorney fees amount to somewhere between 25% – 40% of all payouts to plaintiffs. Personal injury lawyers collect annual revenue of between $58 – $62 billion in the U.S., and most of that is related to auto accidents. Narrowing it down, data from 2023 suggests that auto-related attorney fees totaled somewhere between $20 – $30 billion. Based on other industry sources, Grok gives a broader range for current fees of $15 – $35+ billion. If auto claims and awards were reduced by 80%, which is a fairly conservative estimate of the impact of widespread use of AVs, the potential loss to trial attorneys could range from $12 – $28 billion. They’d probably like to protect those fees without coming off like uncaring bastards. They might fail on both counts, but perhaps populist technophobia will allow the hypocrisy to go unnoticed.

Beyond a more liberalized approach to the use of AVs, an interesting policy prescription is offered by Tabarrok:

“In my view, product liability isn’t useful as a safety device in this field. Instead, the solution is simple. Every car should be required to be insured, regardless of driver. Indeed, Waymo vehicles are already insured at $5 million liability coverage per vehicle, far higher levels than most human drivers are covered.”

Does requiring greater liability coverage represent an infringement of liberties? If so, the cost likely pales in comparison to the social benefits of compensating victims of unquestionably harmful externalities.

From a legal perspective, driving is not a right, but a privilege that can be revoked. That privilege carries obligations to obey traffic laws, and liability coverage is already required of drivers in most states (though not all). In this context, requiring coverage, or a greater level of coverage, would promote efficiency by relying on direct settlement of claims by insurers without attorneys in the middle. Then, insurers have recourse to negotiated settlements with manufacturers who might be responsible for a product defect (including software). As Tabarrok says:

“… messy manufacturer-versus-victim litigation is replaced by insurer-versus-manufacturer bargaining between repeat players who settle efficiently.”

Of course, AVs are trained to comply with all traffic laws and to be deliberate and cautious on the roads. They communicate with each other and have 360 degree vision. Certainly a “software glitch”, as Tabarrok puts it, can lead to tragedy. Nevertheless, despite widespread phobia regarding “robot cars”, faulty or dangerous human actions and reactions behind the wheel are no more forgivable and are far more frequent. And AV reliability continues to improve while evidence on their relative safety accumulates.

Trial lawyers can and often do provide socially valuable services. However, even if you’ve never cast a jaundiced eye at attempts to collect outsized damages from arguably innocent defendants, and on behalf of classes of plaintiffs that are speciously fabricated on occasion, the trial attorney’s attempt to hamstring AV deployment should leave you agape. For all their righteous claims as bulwarks against the injustices of victimhood, the industry does not seem interested in preventing victimhood if it harms the bottom line.