Abstract
Effective regulation requires knowledge. New forms of regulation, sometimes called "co-regulation," propose promoting learning and continual improvement in the regulated. In particular, inducing experimentalism has been named as a regulator's task.
This Article argues that regulators also need to become adept in critical dialogue. In the regulatory process, the critique of the rationality of extant techniques and practices can be an engine to advance public interests. Such critical thinking is attentive to false objectifications and the limitations of truth-claims. The examples in this Article demonstrate that regulatory goals can be advanced when regulators induce critical thinking. Both the regulated and regulators can profit from dialogue in which "habits" have their very rationality challenged.
This Article re-analyzes three "mistakes" in automotive engineering: the recalled Takata airbags, the recalled GM ignition switches, and the National Highway Traffic Safety Administration (NHTSA) analysis of drowning in automobiles. Standard practices were followed in all three cases. This Article demonstrates that all three cases failed in ways predicted by critical thinking. Reifying engineering practices and ignoring their limited rationality, the involved engineers designed killing products and NHTSA underestimated the risks of drowning in cars.
Both the Takata airbag and the GM ignition switch recalls resulted from the automotive industry adopting the practice of using One-Factor-At-a-Time (OFAT) for reliability testing of environmental variables. The normalization of OFAT in automotive reliability engineering is rather exceptional. And in the critical literature of automotive engineering, the supposed reasons for OFAT and its limitations if used have been reviewed extensively. In addition, GM used Risk Priority Numbers (RPNs) to label its problem not as a safety, but as a consumer satisfaction one. The objectification of RPNs also has often been criticized.
NHTSA's analysis of how many drown annually in automobiles, a statistic basic to cost-benefit analyses of any regulatory response, uses OFAT. As a result, NHTSA's number is much lower than others' estimates of U.S. deaths and is inconsistent with findings from other nations. The concept of "Cognitive Capture" explains NHTSA's use of OFAT: Regulators' understandings of what constitutes evidence mimics the understandings of those they regulate. Questioning the rationality of NHTSA's methodology, engaging in such critical thinking, reveals normative choices made in defining what constitutes evidence (in this case, "death by drowning") and in reliance on that construct (in this case, whose deaths matter).
As reliability engineering is basic to many different forms of production, this Article has relevance beyond the automotive industry. As there has been critical thinking about the rationality of other techniques and practices, this Article may inspire others to learn such literatures. As this Article demonstrates, critical thinking has explanatory powers regarding the behavior of large organizations and their highly significant mistakes. The potential profits from making critical thinking part of the regulator-regulated dialogue are demonstrated by this Article. Engaging others in critical thinking is no easy task. This Article, therefore, calls for regulators and the regulated to employ adepts in critical dialogue.
Recommended Citation
Robert Eli Rosen, Critical Dialogue and Regulation: Learning from Engineering Mistakes, 48 Transp. L.J. 1 (2021).
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