The Legal Bias Against Pedestrians and Bikes (Part 1 of 2)

Mission: To promote driving less so all may live more.

This is the first of two posts that highlight points made by Gregory H. Shill, University of Iowa College of Law, in his paper, “Should Law Subsidize Driving?”.[1]

Shill’s eminently readable, 76-page paper has already been summarized nicely in the article, “How Driving is Encouraged and Subsidized — By Law,” by Angie Schmitt (March 6, 2019).[2]

All in all, Shill’s paper provides a damning case regarding the US dependence on a transportation system that militates against individuals who attempt locomotion without polluting the environment or putting others at risk. Often these individuals, as history has it, are poor, young, and brown or black. Laws have (at times unwittingly) been constructed to protect those who need the protection the least and to threaten those who need protection the most. “If you’re not outraged, you’re not paying attention.”

Language: Today’s post touches on the ways in which language masks the realities behind the automobile complex (or “motordom” as the conglomerate chose to name itself). The law article highlights the following tendentious words. It prefaces them by reminding the reader that between 1910 and 1920 as automobiles were introduced, the streets were regarded as public areas, useful for walking on, standing on, playing on, and dancing on. Cars were the intruders. Vermont once had a law requiring cars to be escorted by a pedestrian waving a red flag (21), a course of action no doubt doomed to die but nevertheless signifying the initial recognition that cars were a menace to life.

Accident—we have naturalized the use of “accident” in relation to automobiles. As long as something is considered an accident the driver (in this case) is implicitly exonerated. Events outside of the driver’s control are assumed to be at work. Causality between driving a car and eventual bloodshed is effaced. And, no doubt, some vehicle malfunctions render the driver innocent and impotent to intervene. Often though the collision (or execution, depending on how far we want to travel down the road of responsibility) results from human error. Sometimes, human error is a moral error, when rage replaces sound judgment, and the vehicle is no longer a car but a weapon.

To highlight the inconsistencies inherent in these “accidents,” the paper asserts “The uneven distribution of motor vehicle casualties casts the use of ‘accident’ in even sharper relief. Wheelchair users have a 36 percent higher chance of being killed by motorists versus the overall population, and for male wheelchair users aged 50 to 64 the figure is 75 percent” (22).

Park—to park a car or use a parking lot seems to my untrained ears to be an inevitable use of that four-letter word p-a-r-k. Never did I question its origins, but, happily, the author did. “Park” has all the connotations of a natural space designated for recreation and rest. But that changed drastically, as Shill writes,

Prior to the invention of the car, the verb “park” meant “a. to plant a tree or spread a patch of turf or flowers,” or “b. to create a little patch of parkland” [citing Christopher Gray, Streetscapes/Cars: When Streets Were Vehicles for Traffic, Not Parking, N.Y. TIMES, Mar. 17, 1996] and municipal “parking” agencies were originally charged with creating and maintaining parkland. (23)

For etymological nostalgia, next time you are walking across a massive block of asphalt and painted lines, imagine the newly “parked” trees surrounding you and smell the roses!

Jaywalking—Shill remarks that this is, “perhaps most insidious of all” (29, March, 2919 version). Not only does it prevent streets from being used by the public at large and not instead exclusively by mechanical vehicles, it denigrates the pedestrian, as Shill’s nuanced account illustrates:

“A ‘jay’ was a hayseed, out of place in the city.” Then coupled with “walker,” “a ‘jaywalker’ was someone who did not know how to walk in a city”; the closest epithetic analogy today might be “hick” or “redneck,” with all the elitism and classism of those terms. While jaywalking originally referred to “pedestrians who obstructed the path of other pedestrians,” motorists quickly appropriated the term and in the popular parlance “jaywalkers” soon came to mean “pedestrians oblivious to the danger of city motor traffic” [citing Peter D. Norton, Fighting Traffic: the Dawn of The Motor Age in the American City (2008)]. The usage of “jaywalking” developed in part organically, but was drawn from the streets into the political sphere by organized interests. (24)

While the experienced runner and walker know that in many cases jaywalking is safer than crossing at busy, ill-regulated intersections, the language and laws often blur the edges of reality to stylize these bipeds as obstructions to—rather than models of—good transportation.

 

____Footnotes____

[1] Shill’s paper is posted on SSRN (Social Science Research Network), “an open-access online preprint community providing valuable services to leading academic schools and government institutions.” This paper is an electronic version of a forthcoming paper for New York University Law Review. (The page numbers that I cite correspond those in the June, 2019 full-text PDF version.)

[2] The summary covers the following main points:

  1. Traffic Laws Soft-Peddle Very Dangerous Behavior
  2. Land Use Laws Favor Sprawl
  3. Legal Parking Requirements Subsidize Driving
  4. Emissions Laws Exempt ‘Light Trucks’
  5. Emissions Laws Ignore the Environmental Costs of Roadbuilding
  6. Vehicle Safety Regulations Ignore Pedestrians
  7. Vehicle Safety Regulations Allow Unsafe Aftermarket Vehicle Modifications
  8. Insurance Law Limits Payouts to Pedestrians
  9. Tax Law Subsidizes Sprawl
  10. Tort Law Protects Dangerous Drivers
  11. Contract Law Freezes Out Pedestrians
  12. Criminal Law Rarely Punishes Dangerous Drivers

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