Federal preemption (or not) and the regulation of driverless cars

Sarah Light has written about the concept of Advisory Nonpreemption, using regulation of driverless cars as an example. Here's the abstract:

We are living in an era of dramatic and unpredictable technological and business innovation. Federal agencies have been at the forefront of updating substantive legal rules to meet new challenges not originally contemplated by Congress. Yet some of these new challenges – for example, new technologies like autonomous vehicles – upset longstanding legislative boundaries not only for substantive legal rules, but also for federalism. Significant uncertainty about whether local or national concerns will predominate as innovations develop requires temporary flexibility in the allocation of regulatory authority among the federal, state, and local governments to address these concerns. This Article identifies a new method that federal agencies can use to promote such flexibility before the initiation of a rulemaking – advisory nonpreemption. Ordinary preemption shifts the balance of power from the states to the federal government. Advisory nonpreemption has the opposite effect. It is a federal agency’s advisory statement in policy guidance that it has regulatory authority, and a suggestion to states to limit their regulatory actions. But the statement does not actually preempt states from regulating – at least temporarily. And the agency sets a timetable to revisit the issue. Advisory nonpreemption can open a dialogue among the federal government, the states, and industry not only about the best substantive rules to address innovation, but who ought to govern and enforce those rules. Most importantly, advisory nonpreemption is a method of inserting de facto overlapping, dynamic jurisdiction temporarily into an existing dual federalism scheme. This Article both describes advisory nonpreemption, and defends its use as a normative matter, using autonomous vehicle technology safety regulation as a case study. The approach’s costs in temporary regulatory uncertainty are outweighed by its benefits in promoting innovation, transparency, and the public interest.

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