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Four Practice Areas on the Horizon – Page 2 | Monmouth, Middlesex, Union County

Space Law

Another wave of legal innovation is space law. In the next 50 years, while space will still be controlled and funded for the purpose of scientific exploration, it will also be a place to exploit the vast natural resources in the void. Since the early days of the Cold War, the U.S. has launched vehicles into space, sending ships that have explored planets, landed on asteroids, studied comets, and even left the solar system. The exceptional
speed with which man has harnessed space has, for the most part, left the law behind.

Soon, however, space travel will be accomplished as a private commercial enterprise. At that point, where will the law have evolved? Commercial activity is leading a new generation of space pioneers, seeking profit as well as scientific value. Virgin Atlantic’s founder, Richard Branson, has launched Virgin Galactic,11 a firm dedicated to bringing leisure travel to the upper reaches (and for now, the upper echelon—one flight alone can cost in excess of $200,000). Elon Musk, an Internet billionaire of Tesla and Pay-Pal fame, founded the firm Space X, which has already been contracted by NASA to deliver and return payloads to the International Space Station, the first private firm to do so in history.12

Despite the hubbub of activity, it has hardly moved the space law needle. The seminal authority on pure space law is the Outer Space Treaty of 1967,13 an aged United Nations leftover from the Cold War era that was primarily focused on preventing the weaponization of space and preserving its heritage for all mankind.

Space is most-often discussed in broad, sweeping terms. It is generally thought of as a place for scientific discovery and little else. In the last iteration of United States policy toward space, President George W. Bush directed NASA to focus its efforts on returning humans to the Moon by 2020 and eventually sending them to Mars and “worlds beyond.”14

However, investment in space exploration will depend heavily on applying terrestrial law to the concept of space exploration in novel ways. For instance, how will basic property rights be interpreted? In Nemitz v. United States, et. al.,15 Gregory Nemitz, an amateur astronomer, filed a complaint for declaratory judgment seeking the creation of a remedy to enforce his claims to ownership of Asteroid 433, nicknamed Eros. Nemitz had registered the discovery of Eros 433 with the Archimedes Institute of Space Property Registry in 2000. In 2001, NASA landed the NEAR Shoemaker space vehicle on Eros. When Nemitz learned of the mission, he sent NASA a $20 invoice for storage and parking of NEAR Shoemaker on Eros, payable in installments of $.20 per century. Nemitz asserted an inherent property right of man to own objects in outer space, and that NASA’s entitlement to park its spacecraft on his property without fair compensation is tantamount to a “taking” under the Fifth Amendment. NASA filed a motion to dismiss and in its brief argued Nemitz had failed to establish a constitutionally protected compensable property interest. Judge Howard McKibben agreed with NASA and dismissed the case in 2004. The case raised a fundamental question, posed again by the latest round of asteroid exploration and exploitation by firms like Planetary Resources:16 How do the basic assumptions of property rights change in space?

In the United States, civilian space policy debates have begun to emerge over the use of land for space launches. In Texas, House Bill 1791, introduced by Rep. John Davis, would grant companies like SpaceX, a space freight carrier, “immunity from liability to any person for damages resulting from nuisance arising from testing, launching, reentering, or landing, and exempts such an entity from being subject to any claim for nuisance arising from testing, launching, re-entering, or landing.”17 Other states wishing to attract space jobs may need to compete with this type of de-regulated vision in the future.

Until now, space law in the private sector has largely been the province of the academic sphere, answering questions such as how disputes are to be resolved in space. But as man’s technological prowess increases the ability to travel farther, stay longer, and do more in space, so must the legal practice blaze a new path to the stars.

The Law of Robotics

Anyone familiar with author Isaac Asimov’s work might view the law of robotics with some skepticism. The field of robotics law is not about the philosophical constitution of proto-human machines. Rather, the framework of robotics law is about the new age of interaction between man and machine. That interaction has already begun, and law is already beginning to evolve from these first limited interactions.

The initial phases of robotics law appear to be in the realm of driverless cars. In California,18 Nevada,19 and Florida,20 laws have been devised to determine the type of regulatory structure necessary to allow driverless cars on American roads. Nevada’s law seems to go the furthest. AB-511 revises certain provisions governing transportation in the state, specifically authorizing a driver’s license endorsement for driverless cars and directing the Department of Motor Vehicles to adopt regulations related to their operation.

Some automakers believe fully autonomous automobiles may be in showrooms by 2020.21 In the interim, lawmakers and lawyers alike should be thinking about the implication of driverless cars on the current body of tort law. What must insurers provide in their policies? Who is liable for auto accidents involving driverless vehicles?

For practitioners, the short term means the inevitable legality of autonomous vehicles and adapting their advice to clients and their arguments in the courtroom. For instance, the New Jersey Cell Phone Law22 requires the operator of a motor vehicle using a hand-held wireless telephone keep one hand on the steering wheel. The law does not, however, require a person to actually steer the car. It is likely the advent of autonomous cars will change that analysis. Longer-term questions, such as whether non-human entities can acquire legal rights, exist mostly in the mind’s eye. But, if the pace of technological progress is any indication, the reality of futuristic robotics law will begin sooner rather than later.

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