As We Approach our Autonomous Future, Will Products Liability Law Hold Us Back or Shove Us Forward?

Arizona Appellate Court Revives Plaintiff’s Claim that Vehicle that Struck Her was Defective By Virtue of Not Including Autonomous Safety Feature

In recent years, highly autonomous vehicles have acquired a reputation as a technology that is perpetually just a few years away.  Meanwhile, their Car Wreckenormous promise continues to tantalize.  AVs have the potential to transform American life in a variety of ways, reducing costs both large and small.  From virtually eliminating the roughly 40,000 deaths and hundreds of thousands of injuries we suffer in car accidents every year to making it possible to commute to work while sleeping, AVs are seen as enormously promising.

Against this backdrop, many torts scholars have expressed concern that imposing liability on AV manufacturers threatens to slow or even deter AV development.  When AVs take the wheel, will the companies that make them also take on liability for whatever crashes they can’t avoid?  AV development also raises the possibility—much less commonly noticed—of new liability for manufacturers of conventional vehicles.  If AVs are significantly safer, will courts and juries come to see conventional vehicles as defective?  According to a recent Arizona appellate court opinion, the answer is… maybe so.

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New County Executive Remains Confident in Good Days Ahead for Milwaukee

As new Milwaukee County Executive David Crowley was being interviewed for an online “On the Issues with Mike Gousha” program this week, viewers could see a message board behind Crowley with the phrase, “It’s a good day to have a good day.”

When Gousha, Marquette Law School’s distinguished fellow in law and public policy, asked Crowley about it, Crowley said it was a motto in his family and he described himself as an optimist – in fact, he said, some say he is “recklessly optimistic.”

He maintained that tone, even as he discussed the enormous problems he faces in the job he won in the April 7 election. Milwaukee County government continues to struggle with large financial stresses and increasing demands for services. Add on the crises that Crowley faced the day he took office – responding to the COVID-19 pandemic and the sharp economic slump that resulted – and the urgent issues that arouse in late May in the aftermath of the death of George Floyd at the hands of police in Minneapolis, and it would be easy to guess Crowley’s optimism had declined.

Crowley told Gousha that the crises have “exacerbated what we knew we needed in Milwaukee” and have made progress more difficult. “But we’ll be able to move this community even further” as the issues are addressed, he said.

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AG Kaul, WDNR Reverse Slide of Wisconsin’s Public Trust Doctrine

AG Kaul, WDNR Reverse Slide of Wisconsin’s Public Trust Doctrine

An important shift in Wisconsin water policy has taken place in recent weeks, one that will likely have quantitative effects on Wisconsin water quality. It relates to the relative influence of the public trust doctrine in the state. On several occasions, I have written in this space about the doctrine’s apparently declining influence in Wisconsin. The public trust doctrine is generally taken to mean that a state must act as “trustee” of certain natural resources, particularly the navigable waters of the state, and manage them for the trust beneficiaries—its people.

Operationalizing those general terms has been difficult and has proceeded in fits and starts. For present purposes I will focus on the 2011 Wisconsin Supreme Court decision in Lake Beulah Management District v. Wisconsin Department of Natural Resources, (WNDR) concluding that the public trust doctrine gave WDNR “the authority and a general duty to consider whether a proposed high capacity well may harm [other] waters of the state” via water level drawdown and other potential impacts. In Wisconsin, high capacity wells (HCW) are statutorily defined as wells with the capacity to pump over 100,000 gallons of water per day. The court further held that when considering HCW applications WDNR had the authority to “deny a permit application or include conditions in a well permit” to prevent the harm to other nearby waters.

Around the same time, a new statute arguably undercut that same authority. While the case was before the court the Legislature enacted 2011 Wisconsin Act 21, creating Wisconsin Statute § 227.10(2m). The statute provides that “[n]o agency may implement or enforce any standard, requirement, or threshold, including a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule . . . .” For several years, uncertainty persisted over the tension between the Supreme Court opinion and the statute because the WDNR’s public trust authority is not “explicitly” stated in the statutes or in WDNR’s administrative rules.

Continue ReadingAG Kaul, WDNR Reverse Slide of Wisconsin’s Public Trust Doctrine