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

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

When I discuss the American (and increasingly global) dependency on automobiles, some people with a politically conservative bend respond by saying that the problem is a result of personal irresponsibility, no more.[1]

I was raised to think this way, to think individualistically. So I get it.

However, over time, I realize that done exclusively, this thinking allows conniving and greedy organizations (or their leaders) to move invisibly through the world, exploiting freedom by limiting the range of choices that occur to individuals. As a result of such organizations, even if one’s moral fabric permitted him or her to resist pernicious trends, the very idea of resisting may never enter one’s mind. The gains of corporate and political greed are usually won upstream, with whispers in back rooms, such as, What they don’t know won’t hurt us, and, I don’t care who they vote for as long as I choose the candidates.

This is the second of two posts that highlight points made by Gregory H. Shill’s nonpareil paper, “Should Law Subsidize Driving?”.[2][3] One achievement of his article is that it should forever banish from discussion the notion that auto-abuse is a purely personal, individualized problem. While the legal system is not the main institutional driver, it has developed a protective umbrella, shading the automotive industry from scrutiny and scandal.

“Should Law Subsidize Driving?” would require dozens of Person vs. Automobile posts were they to cover all the article’s important points. Why not instead urge readers to read or browse the article itself? Be so urged.

What follows in this post is a lightly annotated reproduction of the article’s abstract.[4] Although “abstract” may sound dry, this one—along with the article itself—resounds with powerful indictments against the systematic suppression of human locomotion in the service of motorized vehicles.

Abstract

A century ago, captains of industry and their allies in government launched a social experiment in urban America: the abandonment of mass transit in favor of a new personal technology, the private automobile. Decades of investment in this shift have created a car-centric landscape with Dickensian consequences.

(Comment) A “car-centric landscape,” while descriptive, is also oxymoronic, since the cars obfuscate and suffocate the land itself. “Dickensian” is ambiguous, but in this context, I think of something so widespread that it is unstoppable no matter the cost to human life (think of the French revolution in Tale of Two Cities) or something absurd (like Ms. Haversham in Great Expectations, who insists on perpetuating the past, long after its relevance fades).

In the United States, motor vehicles are now the leading killer of children and the top producer of greenhouse gases. They rack up trillions of dollars in direct and indirect costs annually, and the most vulnerable—the elderly, the poor, people of color or with disabilities—pay the steepest price. The appeal of cars’ convenience and the lack of meaningful alternatives has created a public health catastrophe.

(Comment) Any one of these sentences should give one pause before slipping behind the steering wheel habitually. Taken together, they outline a burgeoning crisis. It may not destroy you, but it could easily destroy someone you know, and many you do not know living generations away.

Many of the automobile’s social costs originate in the individual preferences of consumers, but an overlooked amount is encouraged—indeed enforced—by law. Yes, the U.S. is car-dependent by choice. But it is also car-dependent by law.

This Article conceptualizes this problem, and offers a way out. It begins by identifying a submerged, disconnected system of rules that furnish indirect yet extravagant subsidies to driving. These subsidies lower the price of driving by comprehensively reassigning its costs to non-drivers and society at large. They are found in every field of law, from traffic law to land use regulation to tax, tort, and environmental law. Law’s role is not primary, and at times it is even constructive. But where it is destructive, it is uniquely so: law not only inflames a public health emergency but legitimizes it, ensuring its continued dominance.

(Comment) The first step to freeing ourselves from the dehumanization of over-dependence on technology is to recognize it’s a problem. The second step is to realize the existing norms are governed neither by nature nor God but are malleable and need not be the way they are. The third step is to look beyond the obvious causes of overuse to the unseen structures that maintain, propagate, and legitimize the system.

The Article urges a teardown of this regime. It also calls for a basic reorientation of relevant law towards consensus social priorities, such as health, prosperity, and equity.

(Comment) Thank you, Mr. Shill, for the enlightening paper that goes beyond critique to prescription, from theory to practice.

The upcoming post… just in: the upcoming post is a wonderful apology from a driver to an anonymous bicyclist; the following post will provide an example from the state of Colorado where “law [is finally working] towards consensus social priorities, such as health, prosperity, and equity.”

 

____Footnotes____

[1] The converse, of course, also occurs: some people believe the problem is entirely systemic (political and commercial), giving the individual no other choice than to participate. It strikes me as obvious that the responsibilities are mutual. If individuals resisted commercial schemes, they would fail (one problem being that it is usually decades after the schemes have succeeded that their drawbacks become salient); if corporations and their lobbyists did not mold the infrastructure to encourage dependency on the automobile, individuals would never find it so hard to resist and break away from the practices.

[2] Gregory Shill is an associate professor at the University of Iowa College of Law. Shill’s (must-read) paper, “Should Law Subsidize Driving?” 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 full-text PDF version.)

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

[4] I am using the March, 2019 version. Mr. Shill continues to refine the paper (making it shorter).

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