Courting Disaster: Systemic Failures and Reactive Responses in Railway Safety Regulation

The routine reaction of both industry trade groups and government regulators to deadly infrastructure failures such as railway disasters is to characterize them as anomalous, freak events occasioned either by human error or idiosyncratic equipment failure. Conversely, this Article uses the Institutional Analysis and Development (IAD) framework to show how the systematic federal deregulation of the rail industry, combined with federal court decisions holding that federal deregulation preempts both state government regulation and tort actions to remedy these harms, have almost invited such disasters to occur. Piecemeal, partial, patchwork re-regulation occurs only in response to especially egregious, high-profile tragedies. Such reactive regulation ill-serves the safety needs of a public reliant on increasingly complex and intensively used infrastructure. What is needed instead is preventive regulation, based on the application of an Interdependent Systems Analysis (ISA) approach that integrates the findings of individual accident investigations with aspects of the contextual regulatory and statutory framework within which whole categories of similar accidents occur. Empowering both the National Transportation Safety Board and the Government Accountability Office to use such a whole systems approach, as well as compelling regulatory agencies to explain in greater detail why they either are or are not adopting NTSB and GAO findings and recommendations based on such a whole systems analysis, can measurably improve