A Path Dependent Approach for Characterizing the Legal Governance of Autonomous Systems

Autonomous systems promise significant improvements in many fields. These systems will be subject to legal governance requirements. The literature has largely focused on “autonomous governance” as a framework that is broadly applicable to autonomous devices regardless of the type of system (e.g., aviation or motor vehicles) at issue. While there are regulatory principles applicable to autonomous systems generally, an “autonomy-focused” approach is an inadequate lens to consider the governance of these systems. Rather, because autonomous systems are improvements of currently regulated complex systems, the regulation of autonomous elements will occur within those systems’ preexisting regulatory framework. Accordingly, the nature of future autonomous regulation will likely depend on the preexisting features of that substantive system, rather than on an optimal approach divorced from that history, an attribute known in the social science literature as path dependency. In order to characterize diverse regulated systems with an eye toward assessing future autonomous developments, we develop a framework of regulatory approaches to identify specific features of the preexisting regulatory scheme for a given system. We then analyze that approach by examining three different regulatory regimes (aviation, motor vehicles, and medical devices), across two different continents, and consider how the same type of requirement, e.g., fail-safe systems, can lead to different types of regulations depending on the differing baseline framework.