Shifting Out of Park

McDonald (assistant general counsel for Volkswagen of America, Inc.) describes and criticizes the development of automobile product safety law in the US from the 1966 creation of what would become the National Highway Traffic Safety Administration NHTSA onward. He argues that the system leads to far too many vehicle manufacturer recalls without any tangible benefit in safety. He explains this as being due to judicial misinterpretation of the statutes governing recalls, the use of outdated recall processes resulting in lower owner response rates, and failure to hold vehicle owners responsible for failing to attend to recall repairs. He proposes reducing reporting requirements mandated by the Transportation Recall Enhancement, Accountability, and Documentation Act of 2001, increasing penalties on drivers who fail to tender vehicles for recall repair, and limiting NHTSA investigation of defects only to those that truly present an "unreasonable risk to motor safety," a legal standard he suggests has been made meaningless by the courts and the NHTSA over the years.

Summarized review: Shifting Out of Park focuses on automobile safety, particularly as it has been regulated by NHTSA, the federal safety agency charged with promulgating motor vehicle safety standards, conducting defect investigations, ordering or overseeing "defect" recall campaigns, dispensing consumer information, and performing or promoting research into safety issues of the future. Most lawyers find the regulatory labyrinth vexing or daunting, but Mr. McDonald demystifies the agencys process so clearly, it seems as if the reader is a ringside spectator. The beauty is in the lucidly presented details. Chapter 2, for example, offers a "big picture" of the really influencing factors in the universe of vehicle crashes. (Hint: vehicle defects play only a small role.) Speeding, alcohol, and driver distraction are the major causes. Chapter 3 gives a fast-paced history of the regulatory recall process. Chapter 4 reviews the most important court decisions defining the circumstances under which recalls must be conducted. Chapter 5 parses the regulatory regime installed as a result of the TREAD act of 2000 that followed the Ford/Firestone brouhaha. Chapter 6 reviews the law of preemption, expressed and implied. Chapter 7 examines how other federal agencies and some foreign countries govern their recall processes. There are lessons to be learned. Chapter 8 summarizes major points and offers suggestions for improvement of NHTSAs governance of recalls. All defense counsel should be interested in the books discussion of crash causation. The relevance of the book to class action lawyers is evident. Further, as educated professionals, we should be fully informed on what really happens on the nations highways and what actually traffics behind the closed doors of the safety agency. As responsible citizens and as skilled advocates, we ought to be in a position to assess if anything is wrong with a regulatory process we pay for and then help find way to fix it. Perhaps that is the most compelling reason for buying and devouring this book.