107 Iowa L. Rev. 2247 (2022)

Download PDF

Abstract

This Article considers the legal landscape underlying current efforts to develop a large-scale drone delivery system for small packages to the general public. Different options have been put forward, such as flying drones over highways, within a slice of airspace over private land, and in railroad and utility corridors. We argue that there are both practical and legal reasons for focusing on railroad and utility corridors for drone delivery purposes. Between Federal Aviation Administration regulation of the airspace and state and local trespass and nuisance laws, the Amazons and Googles of the world must thread a narrow needle to find the appropriate physical space and favorable legal rules to make a drone highway feasible. In the 1980s, railroads, environmental groups, and the courts had to navigate the legal minefields of 19th-century railroad law when repurposing railroad corridors for recreational trails under the railbanking process. Much can be learned from that experience as new technology promises a futuristic world of nearinstant gratification of consumer desires. But without a firm understanding of the pitfalls and promises of railroad property law, the logistics of federal preemption, and the niceties of state trespass and nuisance, the 21st-century technology is likely to be held back by the arcane twists and turns of 19thcentury property law. In exploring these issues, we provide a framework for analyzing the legal challenges facing development of a large-scale drone delivery network and offer some helpful tools to get this technology off on the right track.