The New Administrative Landscape Needs You

Professor Robert E. Rosen writes about the new administrative landscape in Miami Law Magazine's, Smart Take.
The New Administrative Landscape Needs You
Professor Robert E. Rosen
Automotive Recalls

In 2021, the National Highway Traffic Safety Administration and automobile manufacturers recalled 31.8 million cars. One in four vehicles on U.S. roads now has an unrepaired recall defect.

After studying major recalls, I find that the practice of automotive reliability engineering needs to change. Engineers followed extant rules and standards in testing the parts that led to recalls. They did not act unprofessionally. Instead, inadequate engineering practices continue despite severe criticism from academics and practitioners.

Environmental Factors Interact with Each Other

You undoubtedly have experienced days of high temperature and high humidity. You probably know that on such days, water sometimes forms inside rubber and plastic seals. The effects of high temperature and high humidity are essential, but their combination sometimes produces remarkable results.

Takata sold airbags for 37 car models (including Ferrari and Lamborghini). Takata had a novel design that shaved a few dollars off the cost. Unfortunately, when the air bag’s propellant got wet, deployed airbags shot metal shards into the cabin.

Cycles of high temperature and high humidity caused these problems. Takata reliability engineers tested high temperature and high humidity, but not in combination. They followed OFAT—testing One Factor At a Time. OFAT is the norm in automotive reliability engineering.

OFAT also was followed in the General Motors Corp. ignition switch with low torque and could “accidentally” leave the “RUN” mode, cutting off the motive power and the car’s electricity. Sensors require electric power to operate, and when the ignition switch fell out of “RUN,” sensors didn’t perform, including the sensors for airbags. Deaths resulted.

GM engineers found that “short” people’s knees might knock the ignition key, causing the problem. They also found that “heavy” keychains could cause the issue.

GM engineers didn’t examine the conjoint case of short people with heavy key chains. Remember Napoleon: many short people carry big sticks (and key chains). The risks of such Napoleons turning the ignition switch are independently higher than the sum of the factors. The prevalence of the Napoleon Complex greatly enlarges the overlap between these factors.

The “Cognitive Capture” of NHTSA

The prevalence of OFAT in the automotive industry is reflected in the National Highway Traffic Safety Administration’s calculation of how many die from drowning in cars.

According to the Dutch automobile regulator, modern cars have become “impregnable fortresses” when submerged. Your sunroof won’t work, nor will your windows, and your doors will remain locked. You might have bought a pin hammer to break a side window. But, since 2013, your side windows are likely made of glass impervious to pin hammers because of efforts to protect passengers in rollovers.

Many countries in the world are responding to the problem of drowning in cars, but not the U.S. In 2011, an NHTSA researcher found that annually 384 people drown in cars in the U.S. He admitted that his numbers were low because he lacked some data, including from Hawaii, and did not consider drownings by people attempting to drive through floods. In 2016, NHTSA rejected a petition from a mother of a daughter who drowned in a car because it calculated that only 28 people die annually from drowning. NHTSA decided that the problem was de minimis.

Nothing happened between 2011 and 2016 to lower the numbers who drowned in cars. What happened is that NHTSA applied OFAT to the problem and eliminated all cases in which there were concomitant causes. For example, if the vehicle hit a guard rail before entering the water, it was eliminated because another factor was involved. NHTSA’s methodology reflected its “cognitive capture” by OFAT, a norm of the automotive industry.

I am not an engineer, but I followed the evidence like any lawyer. What surprised me was the extensive literature questioning OFAT. Many have suggested replacements that would be more effective without dramatically increasing costs. Others were more critical and challenged OFAT’s attempts to take engineers’ subjectivities out of the process. Some revealed how reliability tests have become “window-dressings,” not taken seriously. Others spoke about the false objectivities of tools employed in reliability engineering.

Administrative Law and Regulation

A top-down approach to administrative law (the command-and-control style of regulation) is being replaced by one that understands that government often doesn’t know everything. Instead, government actors work with private actors and other quasi-regulatory actors, such as standards-setting organizations and industry groups. Developing beyond the input processes of the APA, the administrative process now enables more dialogue between multiple participants.

My research suggests that taken-for-granted assumptions need to be directly addressed. The literature I found criticizing OFAT needs to have a place in regulatory dialogue because it is ignored at the automotive shop level. It also is omitted in some quarters at NHTSA.

Critical thinking about OFAT is not unique. Other areas of engineering and seemingly objective knowledge also have their critical literatures. Responding to such should become part of the dialogue of participants in the regulatory process.

Because such critical documents challenge what has been seen as “the best,” introducing them is difficult. People are committed to their extant practices and have various mechanisms to deflect criticism. Engaging in critical dialogue is difficult. Parties in the regulatory process, including the government, must employ individuals (including UM law graduates) adept at critical dialogue. This research has convinced me that the absence of critical discussion generally, not just about OFAT, helps explain what has gone awry in industry and not just automobiles.

Based on Robert Eli Rosen, Critical Dialogue and Regulation, 48 Transportation Law Journal 1 (2021). An earlier version is available at

Professor Rosen teaches courses in professional responsibility, business associations, sociology of law, and contracts. His areas of expertise include corporate governance, leadership in the legal profession, and white-collar crime.