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Gattaca and the Law of Designer Babies

“I belonged to a new underclass no longer determined by social status or the color of your skin. No, we now have discrimination down to a science.” – Vincent Anton Freeman

From the ubiquitous grade school novel Brave New World, to the 1997 cult classic Gattaca, sci-fi writers love the idea of genetically tinkering with babies. Also known as “test tube” or “designer” babies, future science promises prospective parents the option of creating the newborns with perfect features and genetics. Because fellow Legal Geek blogger Thomas Harper and I both recently became first-time fathers, I thought we should explore our options in case helicopter parenting doesn’t work and our wives want to remove our less-admirable genetic traits next time.

In Gattaca, Ethan Hawke’s Freeman fights his way through life with poor eyesight and a heart defect after his parents made him “the old fashioned way.” His brother, however, was brought into the world in what was now called “the natural way.” Parents using that process get their first choice for all attributes. Gender screening, defect screening, physical attribute choice. Hell, for an extra $5,000 the embryo could have genes spliced into it to have enhanced musical or mathematical skills.

The “old-fashioned way” versus the new “natural” way. The new way does seem less fun.

Today, designer babies are the product of Preimplantation Genetic Diagnosis (“PGD”), which “is a procedure that identifies genetic defects in early embryos conceived via In Vitro Fertilization techniques.” Bratislav Stankovic, “It’s A Designer Baby!” Opinions on Regulation of Preimplantation Genetic Diagnosis, UCLA J.L. & Tech., 2005, at 3, 1. But PGD isn’t only used for screening out defects, it can also allow parents to select some physical traits, gender, and create a donor offspring for a preexisting sibling in need of a stem cell. Susan M. Wolf, et al., Using Preimplantation Genetic Diagnosis to Create a Stem Cell Donor: Issues, Guidelines & Limits, 31 J. L. Med. & Ethics 327 (2003).

While illegal in a number of countries, the United Kingdom’s ethics body has recently come out in favor of PGD if it is used in the future child’s best interests. The United States government, however, has largely stayed out of regulating PGD despite U.S. researchers already using the technique to genetically modify embryos. The Food and Drug Administration has issued a final rule regulating certain uses of human cells, tissue, and cellular and tissue-based product. See Human Cells, Tissues, and Cellular and Tissue-Based Products; Establishment Registration and Listing, 66 FR 5447-01. Identifying future concerns, the U.S. National Academies of Science, Engineering, and Medicine published a 261-page report suggesting limitations on the technology but agreeing that it is permissible if researchers meet strict criteria.

My son pondering why he was so lucky to get all of my wife’s features except for his dad’s enormous noggin

Acknowledging a woman’s privacy rights, the Supreme Court in Roe v. Wade held that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” 410 U.S. 113, 154 (1973) (emphasis added). Accordingly, several states have enacted laws regulating embryo research, including some with felony penalties for violations. Michigan law prohibits nontherapeutic research if “the research substantially jeopardizes the life or health of the embryo.” Mich. Comp. Laws § 333.2685. Minnesota law bans all research “except to protect the life or health of the [embryo],” Minn. Stat. § 145.422, and Pennsylvania makes it a felony to perform any type of research on an unborn child, 18 Pa. Cons. Stat. § 3216. See also Me. Rev. Stat. tit. 22, § 1593; La. Stat. Ann. § 9:129.

Critics of PGD and genetically-engineered babies often associate the process with the eugenics practices of the early 20th century, such as the forced sterilization of disabled persons to remove unwanted traits from society. See Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding sterilization law because “society can prevent those who are manifestly unfit from continuing their kind”). The high cost of PGD procedures also means that it is functionally only available for the wealthy elite, subtly encouraging a culture of selectivity and discrimination based on “desirable” traits. Greedy medical clinics will likely jump at the chance to cater to the whims of these “buyers,” disregarding ethical concerns and turning “the process of having child into a consumer experience, giving it a measurable, commodified value.” Stankovic, “It’s A Designer Baby!”, at 3, 34. So what controls or criteria should—and can—be implemented to address the obvious pitfalls of this technology?

A very technical diagram of how babies are genetically modified

The U.S. Constitution does not explicitly mention reproduction, but that does not mean the Supreme Court has avoided the topic. Abortion, which can implicate the rights of the both the mother and child, has been upheld with certain cabining concepts. First, the Court has ruled that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846 (1992). Because viability has been the benchmark, protecting the rights of embryos in PGD may turn on establishing the fertilized ovum’s personhood. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. Chi. L. Rev. 381, 400 (1992).

Second, the Court has also commented on the broad category of permissible state interests in the reproductive realm. “[T]he state interest in [protecting] potential human life is not an interest in loco parentis, for the fetus is not a person . . . . [This interest] is not grounded in the Constitution. It is an indirect interest supported by both humanitarian and pragmatic concerns[.] The State may also have a broader interest in expanding the population, believing society would benefit from the services of additional productive citizens– or that the potential human lives might include the occasional Mozart or Curie. These are the kinds of concerns that comprise the State’s interest in potential human life.” Casey, 505 U.S. at 915. Accordingly, the Court is likely to leave the question of where to draw the ethical and prudential lines around PGD to the states.

So now EV gets her dad’s genes and taste in comic books? Something must be done.

But state statutes have been deemed unconstitutional on the basis of violated fundamental liberty interest, or on grounds of vagueness regarding what constitutes “experimentation” or “therapeutic.” See Lawrence v. Texas, 539 U.S. 558 (2003); Lifchez v. Hartigan, 735 F. Supp. 1361 (N.D. Ill. 1990); Margaret S. v. Edwards, 794 F.2d 994, 999 (5th Cir. 1986). What level of scrutiny these potential PGD laws are tested under, however, is not entirely clear. While state laws that “impinge on personal rights protected by the Constitution are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest,” no enumerated personal rights pertaining to reproduction and genetic modification exist. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 433 (1985). Therefore, because unmodified embryos are also not a protected class, it’s likely the courts will review future state laws under the easily-met rational basis test. Stankovic, “It’s A Designer Baby!”, at 3, 13.

In conclusion, the technology for genetically designing babies that first seemed so ridiculous in Gattaca is knocking on the door of reality. While the federal government is likely to cede regulation of PGD to the states (at least initially), state laws will likely be subject to scrutiny under the Fourteenth Amendment’s Equal Protection Clause or Due Process Clause. And because U.K. and U.S. medical boards have deemed the practice ethically sound at least in theory, I’d imagine that we will start to see these issues crop up sooner than later. So the only remaining question is, do Thomas and I talk our wives into making our next children football or electric guitar prodigies?

Probate Law in the Aftermath of Infinity War

Thanos turned half of all life to ashes at the climax of Avengers Infinity War. A universal death date for half of every person on Earth would pose many challenges, such as who died? Were the deaths proportional across cities or were some places hit harder than others? There are people key for delivering services for societies to function. Did 80% of doctors in Los Angeles turn to dust, while only 20% of doctors in New York City? How many people who can run a nuclear power plant are left alive? And the big one: How many Probate Judges were not turned to dust?

Many people have well dynamic estate plans. This could cover anything from wills for distribution of property to trusts providing financial support to where they went to college. Those who die without a will have their property distributed according to intestate succession. In a world where 50% of the U.S. died at once, courts would be flooded with survivors trying to put society back together.

Probating Wills

Estate law is governed by each state. While there can be variations, generally states have very similar requirements based on centuries of probating estates.

The most basic will is a statutory will, which is a form document where the testator (person creating the will) fills in the blanks of the pre-printed will, signs it, and has witnesses who observe the testator sign the will, before signing the will in the presence of the testator. Cal. Prob. Code § 6221. Having one of these wills is better than nothing, but it might be lacking for more thoughtful estate planning.

An attorney ideally prepares formal wills after careful consultation on the wishes of the testator. Formal wills require the testator to sign the will in the presence of the two attesting witnesses, or acknowledge their signature to each attesting witness separately, and declare to them that his signature is on the will. Witnesses are required to sign the will and list their addresses. N.Y. Est. Powers & Trusts Law § 3-2.1.

A holographic will is not as cool as it sounds. These wills are not video form wills created by a Stark Industries app, but a testimonial document that is in the testator’s own handwriting that cover the material provisions of a will and signed. These wills do not need to be witnessed. However, undated holographic wills can be subject to challenge if it contains provisions that conflict with a formal will. Cal. Prob. Code § 6111.

Intestate Succession

People who die without a will have their estate disposed of through intestate succession to surviving heirs. This can also cover property not covered in a will. Cal. Prob. Code § 6400. It is easiest to think of intestate succession as flowcharts contingent on whether there is a surviving spouse.

If the descendant has no one who falls under intestate succession, then the property would go to the state (the legal term is “escheat”). Cal. Prob. Code § 6404

What Will Happen to the Courts in the MCU?

Courts across the United States would be flooded if half the population turned to dust. County offices would literally and figuratively be buried in the dust of deceased as they processed death certificates. State Courts that already do not have enough judges currently would have LESS judges to handle the flood of probate cases. For example, San Francisco has a population of 870,887 people. Assuming the courts hear 40 cases a day, the influx of 435,444 probate petitions would shatter the court system.

Consider the family of Hank Pym, Janet van Dyne, and Hope van Dyne. All three characters died in the mid-credits scene of Ant-Man and the Wasp. It is highly likely that there are no other surviving family members. If Hank Pym had a will, the probating of his technology could go to a colleague in the event he had no surviving family. However, there is a strong (and terrifying) likelihood that all of Pym’s technology could escheat to the state if not covered by a will and there is no one to take by intestate succession.

The other nightmare scenario related to probate is the payouts for life insurance policies would cause that industry to collapse. Assuming the US population in the MCU is 326,766,748, then 163,383, 374 people died at the end of Infinity War. Assuming 20% had life insurance policies there would be approximately 32,676,675 life insurance claims. If each insurance policy was for $150,000, the total payout would be $4,901,501,220,000.

There would need to be Federal bailouts to keep life insurance companies out of bankruptcy. The process for payouts would likely be protracted, as survivors would need to acquire death certificates from counties. As there is only dust left of Thanos’s victims, identifying people would be ripe with fraud, as there is no way to identify a pile of dust. Insurance companies would fight paying out survivors to avoid a total melt down of the market.

All of these issues would fall to already taxed Courts, which would be operating at half of capacity with a massive increase in case load. However, ideally the Avengers do not spend time figuring out how to help probate courts, but how to undo the damage created by Thanos. It would be easier to figure out how to respond to mass resurrection of victims instead of probating universal genocide.

Did Hela Commit Desecration of Corpses in Asgard?

Hela in Thor Ragnarok used the Eternal Flame to reanimate the honored dead of Asgard for her personal mindless army. Could the descendants of those soldiers sue Hela for desecration of a corpse?

Law of the Dead

It has been long established since the time of Ginnungagap that the “family of the deceased has a legally recognized right to entomb the remains of the deceased family member in their integrity and without mutilation.” Koerber v. Patek, 123 Wis. 453 (1905). As such, the next of kin have a claim against whoever mutilates a corpse. Id. This is a personal right of the family of the deceased to bury a body and an actionable wrong. Carney v. Knollwood Cemetery Ass’n, 33 Ohio App. 3d 31, 36, (1986). The recognized basis for damages is for emotional suffering. Id. Courts have held that direct blood descendants have standing to sue for desecration of a corpse. Carney, at *37.

Statutes prohibiting the removal of human bodies have been found to apply to bodies that have been deceased for thousands of years. State v. Redd, ,992 P.2d 986, 990-91 (1999 Sup.Ct.). The purpose of applying the law to all dead bodies is to protect the remains of pioneers buried laid to rest in crude graves, war dead, or victims of accidents or crimes. Id.

Raising Hela

Hela entered the tomb of the honored dead by breaking through the ceiling of the tomb. This action would be the willful destruction of a tomb (and likely a monument) or possibly defacing. Many states have laws prohibiting the destruction of tombs and gravestones, which Hela clearly violated. See, Tenn. Code Ann. § 46-1-313.

Hela’s use of the Enteral Flare disturbed the corpses of Asgard’s honored dead. This patently violated the integrity of the bodies, infusing them with an unnatural life. The bodies did not appear to return to their living state, but remained decayed. Moreover, the bodies acted as decomposed drones that followed Hela’s orders to attack the citizens of Asgard. Any descendants who saw their reanimated ancestors murder their fellow citizens would suffer emotional harm (and be in mortal danger as well).

Hela would be subject to the lawsuits by the direct descendants of the honored dead who were reanimated by the Eternal Flame. This act did not restore them to life, but used their putrefied remains to butcher Asgardians. While desecration of the corpse cases are not normally class actions based on supernatural actions, there is a first time for everything.

Hela could also be prosecuted for defacing the tomb of the honored dead and reanimating them. Her actions violated the letter and spirit of the law that protects bodies from being mutilated.

A defense attorney might argue Hela was the rightful queen of Asgard, thus could violate corpses and murder the citizens of Asgard. The problem with that position, is a leader is never justified in murdering their people. Thor was right to defend the Asgardian people from extermination. Moreover, if ever there is a time for a revolution, it is when a ruler decides to slaughter her people.

The Court Martial of Poe Dameron at San Diego Comic Con

The Legal Geeks and the Rebel Legion Sunrider Base present the Mock Court Martial of Poe Dameron, recorded live at San Diego Comic Con on July 20, 2018. Based on the events of The Last Jedi, Poe stands accused of disobeying General Leia Organa and leading a mutiny aboard the Resistance flagship Raddus against Vice Admiral Amilyn Holdo. Lawyers for the prosecution and defense, including a U.S. Army JAG attorney, will take on Poe’s case in front of United States Magistrate Judge Mitch Dembin. Participating attorneys include Steve Chu, Thomas Harper, Christine Peek, and Megan Hitchcock. Rebel Legion members Rachel Williams portrayed General Leia Organa and Marcus Holt as Poe Dameron. Special thanks to Riley Blanton of the Star Wars Report for helping film and edit this recording.

SDCC 2018 After Action Report

The 2018 San Diego Comic Con was the best we have ever had at a con. Our two Star Wars panels had 500 people attend, with excellent audience questions, and a standing ovation after our Mock Court Martial of Poe Dameron. We had a rapid-fire discussion of the legal issues in the Marvel Netflix shows, including an attendee who began her question with, “I go to all of your panels.” She was from New York and we are grateful to see people so interested in the practice of law.

Judges on Star Wars

A huge thank you to Circuit Judge John B. Owens, Magistrate Judge Stacie Beckerman, Magistrate Judge Mitch Dembin, CA Judge Carol Najera, and NY Judge Matthew Sciarrino for their legal analysis of The Last Jedi and Solo. The Judges all showed their geek cred with chambers photos of their Star Wars collectables to kick off the panel. We also had excellent audience questions, which are included on the panel recordings.

Our mission was community outreach, because the “law” can be extremely complex. However, there is no better foil than Star Wars to understand the law. Tune in to our panel to hear the many legal issues from The Last Jedi and Solo, covering the duty to rescue, negligence, Droid Rights, military tribunals, and more.

Q&A for the Judges

Defending the Defenders

The Marvel Netflix shows Daredevil, Jessica Jones, Luke Cage, Iron Fist, and The Defenders, are all overflowing with legal issues. CA Judge Carol Najera, NY Judge Matthew Sciarrino, Christine Peek, Jordon Huppert, Megan Hitchcock, and Thomas Harper, joined us for a deep dive into the law of the Defenders.

Creating a Mock Trial

A Star Wars mock trial needs witnesses who can testify to events. The Rebel Legion Sunrider Base had two outstanding volunteers to join our team. Marcus Holt and Rachel Williams are two amazing cosplayers who love their characters. Both learned their respective witness statements and practiced with their attorneys on how to do a direct examination. Additional practices were scheduled over videoconference on how to answer questions on cross-examination. Judges also assisted with mentoring on how be on the witness stand.

Poe Dameron Witness Statement

Following canon and staying true to the characters was pivotal in having a successful mock trial. Witness statements were prepared based on the film, with supplemental details from the book and Wookieepedia.

Statement of General Leia Organa

The attorneys decided to wear Resistance uniforms for the mock trial. The mother of one of the defense attorneys had years of experience making costumes for Renaissance fairs and volunteered to make the jackets. She did a stunning job with the guidelines from the Rebel Legion.

Distressing the Rebel shoulder patches

Mock Court Martial of Poe Dameron

We wanted to address the complex issues of Star Wars The Last Jedi to help fans find a resolution to the actions of Captain Poe Dameron. Star Wars aspires to the high ideas of heroes standing up to fascism, whether it was the Empire or First Order. Being a nation of laws, our disputes are resolved in courts. Those who are charged with a crime have the right to counsel and a fair trial.

Highly skilled trial attorneys were recruited to represent Poe Dameron and the Resistance in order for the case to be fully litigated. The “facts” of the underlining charges against Poe Dameron can be summarized as follows:

Insubordination when then Wing Commander Dameron disregarded General Leia Organa’s order, shut down his radio, and ordered the bomber squadron to attack the First Order Dreadnought Fulminatrix. All eight bombers and forty crewmembers were lost in the attack.

Mutiny when Captain Dameron conspired with Lieutenant Kaydel Ko Connix, Rose Tico, and Finn to organize a plan to infiltrate the First Order Mega-Class Star Dreadnought Supremacy without the knowledge of his commanding officers.

The end result of Captain Dameron’s mutiny was the transmission of Admiral Holdo’s plans to Finn and Rose, which allowed the information to ultimately fall into the hands of the First Order. The First Order used this information to shoot down numerous unarmed Resistance transports escaping the Raddus.

Defense Closing Arguments

Captain Dameron’s attorneys argued a strong defense based on mistake of fact that Vice Admiral Holdo was a traitor. The Defense arguments invoked the Clone Troopers who followed Order 66 without question (who also have a strong insanity defense); the Clone Troopers of the 501st who questioned the loyalty of General Krell and did not blindly follow orders that would have led to ruin; and looking to the namesake of the Raddus with the heroes of Rogue One for violating orders to steal the Death Star plans. Moreover, the Defense highlighted that Captain Dameron had witnessed civilians murdered by the First Order and was tortured by Kylo Ren days, if not hours, before the evacuation of D’Qar.

I thought the Defense could have carried the day with their argument. The attorneys argued with courage, resolve, and great empathy for Captain Dameron.

Prosecution Closing Arguments

The Prosecution had a powerful case against Captain Dameron where General Leia Organa testified to the events around the evacuation of D’Qar and the escape from the Raddus. From the Prosecution’s opening statement to closing argument, there was no escaping the fact that Poe Dameron disregarded General Organa’s order to break off the attack on the First Order Dreadnought Fulminatrix. That attack resulted in the loss of entire bomber squadron and three X-wings.

The Prosecution attorneys did a masterful cross-examination of Captain Dameron, where he admitted to both disregarding orders and seizing control of the Raddus at gunpoint. The Prosecution drove home the loss of life that was a direct result of Captain Dameron disclosing Vice Admiral Holdo’s evacuation plan that was overheard by DJ and sold to the First Order. The Prosecution made clear it was Captain Dameron’s actions that cost the Resistance lives on two separate occasions.

Prosecution Cross-Examination of Captain Poe Dameron

Trials are the main way we resolve conflict. The justice system is the forum for wrongs to be righted. More importantly, our system is predicated on fundamental fairness for the accused to have a defense. In our mock trial, the defendant had attorneys with years of trial experience who had deep knowledge of Star Wars canon. The prosecution and defense both forcefully argued their case. Everyone put in substantial time preparing their witnesses and arguments. Job well done to all of the attorneys and witnesses for bringing this case to life.

Cross-examination of General Organa

We were extremely humbled by the positive reception to the mock trial. From everyone who live Tweeted the proceedings, to the standing ovation at the end, to the article in SyFy, thank you. We are glad you enjoyed the mock trial.

The Blade Runner Model, Part II: Liability and the Flying Car

“Throw in some liability lawsuits, and flying cars are not just dangerous, but also obscenely expensive.” – James Oswald

To recap Part I from last week, flying cars are quickly moving from the realm of science fiction to reality as 15 different companies race to get the first model to market. Along with the promise of faster, traffic-free travel, a host of novel(ish) legal questions exist surrounding this new technology. Given the safety and liability issues, I believe the federal and state governments should adopt the “Blade Runner Model.” While I will lay out the exact structure of this policy at the end of this article, the basis of my argument is that the government should strictly limit and regulate who can use flying cars—at least initially.

As previously discussed, the Federal Aviation Administration (FAA) assuredly will control most aspects of flying car technology as it has the sole responsibility to “prescribe air traffic regulations in the flight of aircraft.” 49 U.S.C. § 40103(b)(2)(B). State governments, however, will definitely retain some powers related to this new air travel. So after considering the need for federal control over the safe and efficient rollout of this technology, the last factor weighing in favor of the Blade Runner Model exists in an area of control retained by the states: tort liability.

Unlike preemptive regulations meant to prevent accidents, tort liability involves a retroactive look at how injured plaintiffs or the victims’ estates can recover damages resulting from flying car accidents and misuse. I believe that strict liability will likely be applied in the event of non-intentional flying technology accidents because of the inherent danger involved with air travel and any new technology (especially in the early stages). Because implementing strict liability will force flying car manufacturers to pay for any accidents involving their product, these companies should also support a limited rollout of flying car use (meaning less payouts) under the Blade Runner model as well.

Don’t you just hate when your UberFlight driver doesn’t know the local airspace? Ugh. 3 stars.

Although the Federal Aviation Act and its implementing regulations generally purport to control all aspects of a vehicle’s inflight activities, see 49 U.S.C.A. § 40101 et seq., courts have held that the Act does “not indicate a clear and manifest congressional intent to preempt state law products liability claims [and] Congress has not created a federal standard of care for persons injured by defective airplanes[.]” Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 696 (3d Cir.), cert. denied sub nom. AVCO Corp. v. Sikkelee, 137 S. Ct. 495 (2016). Accordingly, state laws regarding liability are applied to address damages when an individual’s person or property is damaged in the aviation context. Id. Even in federal enclaves, Congress has mandated that “a right of action shall exist as though the place were under the jurisdiction of the State in which the place is located” and “the rights of the parties shall be governed by the law of the State in which the place is located.” 28 U.S.C. § 5001(a), (b).

So what standard of liability should apply to this new technology? Looking to the history of automobile and aviation liability in the U.S., we find our answer. In the early days of commercial automobile and air travel, accidents were much more frequent because as with any new technology, certain problems simply cannot be anticipated. See Speiser and Krause, Aviation Tort Law §§ 1:6-1:8, 8:44. Finding that there was “good reason to consider aviation ultrahazardous,” courts held that aviation-related accidents fell “into the category of blasting, of the storage of dynamite, of drilling for oil, of the escape of fire from trains, the peculiar dangers of each of which subject those engaged therein to liability without fault at common law.” Prentiss v. Nat’l Airlines, 112 F. Supp. 306, 312 (D.N.J. 1953); D’Anna v. United States, 181 F.2d 335, 337 (4th Cir. 1950) (“One who flies an aeroplane is opposing mechanical forces to the force of gravity and is engaged in an undertaking which is fraught with the gravest danger to persons and property beneath.”). Accordingly, airplane manufacturers were held to a strict liability standard.

Expensive AND dangerous? Sign me up!

Adopting the Restatement (Second) of Torts § 402A, states legislatures held these companies strictly liable when they sold “any product in a defective condition unreasonably dangerous to the user or consumer or to his property[.]” § 402A(1). Even if “the seller has exercised all possible care in the preparation and sale of his product,” § 402A(2)(a), the inherent danger of air travel weighed in favor of holding those companies strictly liable. See also § 520A (strict liability for accidents caused by aircraft on the ground). Although early vehicle manufacturers like Henry Ford fought this stringent standard, courts were quick to reject their arguments based on the “broad socio-economic policy of risk-spreading” that underlies the strict liability regime. Michael W. Wilcox, Strict Liability in Tort Applied to Both Automobile Manufacturer and Retailer, 48 Marq. L. Rev. 268, 269 (1964).

Applying this same standard to flying cars likewise makes sense. Early models of flying cars are likely to encounter software and mechanical issues that create similar ultrahazardous conditions during use. Manufacturers—always in a rush to mass-produce their newest technologies and reap profits—will obviously endeavor to make them as safe as possible; however, no amount of due diligence or testing will prevent at least some flying cars from falling out of the sky. Other considerations “include the unequal distribution of the benefits and risks of aviation between those in the air and those on the ground, the difficult and expensive burden of proof faced by the plaintiff in an aviation accident case, the ability of the aircraft owner to spread the financial risk through its enterprise or through insurance, and the high degree of harm that ensues, despite the exercise of due care, when an airplane crashes.” 73 A.L.R.4th 416. Recognizing (1) the various policies pertinent to early vehicular travel and (2) the need to pressure companies to create the safest product possible, states should quickly adopt strict liability statutes in anticipation of greater flying car usage.

Well, everyone knows Flying Cars land on vertipads. What this book presupposes is… maybe they don’t?

Early adoption of the strict liability standard will also give guidance to the insurance companies that will inevitably provide coverage for the flying vehicle manufactures. Clarification is certainly necessary as to whether a flying car is considered an aircraft or an automobile (in the state-specific insurance context) to address the scope and coverage of insurance before, during, and after the transition from road to sky. See Matthew G. Berard, Flying Cars: The Reconciliation of Aircraft and Automobile Insurance Policies, 47 Tort Trial & Ins. Prac. L.J. 781, 801 (2012). Without such clarification (which likely could be directed by federal regulation under the FAA’s congressional mandate), insurance companies may be hesitant to create comprehensive coverage schemes that are financially reasonable and adequately cover foreseeable and unforeseeable issues and accidents.

The federal government could also preempt the entire liability field, if it so chooses. Under that scenario, Congress should adopt something akin to the Montreal Convention, see 149 Cong. Rec. S10,870, which mandates that “[t]he carrier is liable for damage sustained in case of  death or bodily injury of a passenger” during international air travel. Art. 17(1). This makes perfect sense in the context of flying cars, which are not restricted to staying on the road and can presumably avoid border crossings unlike conventional automobiles. Furthermore, federal control over liability would streamline the entire flying car regulatory scheme with liability and safety measures included in one comprehensive statute.

The most obvious upgrade for police vehicles: Gatling guns.

Applying the Blade Runner Model in the United States

Taking into account these safety, efficiency, and liability issues inherent in the implementation and integration of flying cars, the Blade Runner Model makes the most sense. With federal safety regulations and a strict liability regime in place, state and federal government emergency flying vehicles would be the only ones initially allowed to navigate the streets and airspace. Once safety and technical issues have been sufficiently addressed, use of flying vehicles for mass public transit and commercial product transport could slowly introduced. Only after these major issues have been definitively sorted out by the government during this initial period should we then allow private vehicles to take flight. Otherwise, the rollout of flying cars is likely to be simply too costly, noisy, and dangerous to justify the value they represent.

The Blade Runner Model: A Policy Rollout for Flying Cars

“Mark my word. A combination airplane and motor car is coming. You may smile. But it will come.” – Henry Ford, 1940.

Throughout my life, I have lived in Chicago, Los Angeles, and Seattle—three of the top ten worst cities for traffic. As a result, I have spent more hours stuck in gridlock traffic than I care to admit. Unsurprisingly, I think the advent of the flying car cannot come soon enough. Watch almost any new sci-fi show or movie today featuring a flying car and you will know why: there’s never any traffic in the sky. Save a few outliers like The Fifth Element, modern sci-fi generally shows flying cars being driven only by the police or the uber-wealthy. So despite my strong desire to skip the I-5 parking lot on a Friday afternoon, I think major restrictions on flying car accessibility and travel should be implemented in what I’ll dub “The Blade Runner Model.”

First and foremost, it’s important to lay out the realities of actual flying car use versus what sci-fi presents us. As others have pointed out, “[i]n order for flying cars to be accepted as vehicles for urban mobility, they need to be able to take off and land without the need for a runway amidst the congested urban landscape.” A flying car’s Vertical Take-Off and Landing (VTOL) capability, reminiscent of the Harrier Jump Jet, is really the only feasible way to enable flying cars to be used in cities that feature increasingly crowded streets and public spaces. And while the idea of manually flying a car around Seattle’s iconic Space Needle is certainly appealing, the initial safety data on self-driving cars all but demands that driverless technology be required in all flying cars (at least in urban settings). I mean, driving a normal vehicle is dangerous enough without the possibility of plummeting hundreds of feet to one’s fiery demise.

Because driving in that traffic looks fun. Not.

But who should get the privilege of ascending above the street-level fracas of horns and fender benders? If we watch the flying cars in Blade Runner—colloquially known as “spinners”—I think we have our answer. In both the original and the sequel, spinners seemingly are used by law enforcement and government exclusively. Hear me out. Despite the population explosion necessitating the exploration of off-world colonies and the obvious viability of flying cars, the streets of 2019 Los Angeles are packed with traditional cars but the skies are eerily empty. Why is that? I believe the answer lies in two distinct considerations that the United States should strongly contemplate as flying cars become a reality: first, the Constitutional authority and responsibility of the federal government in implementing nationwide regulation and second, the dangerousness of operation and cost of liability.

The Federal Government Rules the Airspace

Normally, state governments have the inherent law enforcement authority to regulate the licensing and safety of citizens traveling by vehicle within its borders. See Hendrick v. State of Maryland, 235 U.S. 610, 622 (1915). The Constitution’s Supremacy Clause, U.S. Const., Art. VI, Cl. 2, however, invalidates state laws that “interfere with or are contrary to, the laws of [C]ongress.” Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824). Even when “Congress has not enacted an explicit preemption clause, state authority may still be displaced if an intent to preempt is ‘implicitly contained in (the federal statute’s) structure and purpose.’” San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1310 (9th Cir. 1981) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)).

Note the absent private vehicles, because apparently only the police in the Old World get to be distracted by 50-story tall Japanese women.

Accordingly, the Supreme Court and Congress have effectively held that the entire field of aviation is preempted by federal law. See City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973); 49 U.S.C. § 40103(a)(1). As a result, the Federal Aviation Administration (“FAA”) has the sole responsibility to “prescribe air traffic regulations in the flight of aircraft (including regulations on safe altitudes) for . . . protecting individuals and property on the ground.” Skysign Int’l, Inc. v. City & Cty. of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002) (quoting 49 U.S.C. § 40103(b)(2)(B)). This makes sense, because it “would be utterly impracticable” for states to bear the burden of coordinating and unifying the vast regulations needed. See Allegheny Airlines v. Vill. of Cedarhurst, 238 F.2d 812, 816–17 (2d Cir. 1956); Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 698 (7th Cir. 2005) (“It would be unmanageable—say nothing of terrifying—to have local control of flight routes or of flight times.”). The FAA has taken on this mission, even recently approving an exemption for one company’s “Roadable Aircraft” test as a Light Sport Aircraft, requiring the “drivers” to have the applicable licenses and safety mechanisms in place.

That’s not to say that states would have no power whatsoever over the burgeoning flying car industry. The aforementioned urban landscape would probably necessitate designating takeoff and landing zones for flying car use during the most hazardous portion of the flight. And courts have consistently ruled that local land use, even use directly related to aviation, falls well within the exception to federal aviation preemption. See Gustafson v. City of Lake Angelus, 76 F.3d 778, 789 (6th Cir. 1996) (seaplane landing regulations not preempted); Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th Cir. 1990) (heliport regulation not preempted). Certain other issues related to zoning, trespass, and privacy would likely also fall within the states’ powers. See State and Local Regulation of Unmanned Aircraft System (UAS) Fact Sheet, FAA Office of the Chief Counsel, at https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf.

Landing in a back alley … because that seems safe.

Because it has the inherent and unilateral authority to do so and even though every “citizen of the United States has a public right of transit through the navigable airspace,” 49 U.S.C. § 40103(a)(2), the FAA (after some handy statutory amendment) should still restrict flying car travel to emergency and government personnel only. First, the rollout of flying cars is going to be fraught with danger. Like any new technology, we aren’t even aware of the problems likely to be encountered by flying cars in the air. From a simple safety standpoint, the FAA should try to limit the chances of in-air collisions or catastrophic failures by reducing the number of vehicles in the air. It would also give the companies involved a chance to work out the first generation bugs in the technology.

Second, the delay of public implementation would give the state and federal governments time to cope with an entirely new means of travel. Local and state law enforcement would need to entirely revamp their approach to traffic control and criminal pursuit. Landing zones, building flight path obstructions, and land-based servicing facilities would need time to be considered and implemented. Put a different way, there’s simply too many logistical issues that need to be worked out before thousands of private flying cars dot the sky. Maybe once the initial issues are worked out in government-owned and -operated emergency and transport vehicles, then larger corporations—with deep pockets and cautious boardrooms—could begin using this technology to move freight and incrementally increase airspace traffic.

Larry Page testing out Google’s first flying car. Oh the majesty.

Last, the issue of financial liability weighs heavily in favor of strict restrictions on flying cars initially. For an exploration of that issue, however, you’ll have to check back next week for Part II of the Blade Runner Model.

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