By William O’Brien

            The United States is a county obsessed with the automobile, and it is reflected in our laws. Yet, it may go unnoticed by the general public just how much the law subsidizes driving. Americans’ emphasis on driving has produced extraordinary social costs, including high mortality compared to other forms of travel and a substantial amount of exhaust emissions. In his article Should Law Subsidize Driving?, Professor Gregory Shill contemplates how the law may be changed to eliminate the law’s hidden subsidies for driving.[1]

            Professor Shill starts by defining the term “subsidize”. Many people may be familiar with direct subsidies, in which the government somehow makes an activity less expensive through directly funding or discounting that activity. However, Professor Shill uses the term in a broader sense. He contrasts subsidies with taxes, explaining that they are essentially the inverse of each other.[2]This simpler definition embraces ways in which the government makes an activity less expensive indirectly, whether that is the intended effect of the policy or not. This in turn leads to Shill’s assessment that the public at large subsidizes driving, and is forced to do so by law. He then continues to provide numerous examples across many different contexts.

            Professor Shill first examines the most obvious example of the law’s interaction with driving: traffic laws. While ostensibly these laws act to regulate driving in a way that protects public health, Shill notes that their largely arbitrary underenforcement undermines their value.[3]One specific example he describes are laws that require a motorist to yield to pedestrians at a crosswalk. According to one study, only 16% of drivers yield to pedestrians.[4]This pervasive underenforcement leads to a culture of blaming pedestrians for their injuries when a motorist strikes them at an intersection. Shill demonstrates this bias by noting that media and police reports often describe the victim as walking in an unmarkedcrosswalk, despite the fact that the common legal definition of a crosswalk does not require markings.[5]

            Next, Professor Shill analyzes how land use regulation has shaped our culture of driving. One notable way that he does this is by examining how the need for parking has affected land use. Shill argues that generally cost-free parking on most curbsides coupled with an overabundance of parking availability (as much as six spots per person)[6]has induced demand for automobiles. Laws have aided in inflating this demand by, among other things, mandating public parking for private buildings[7]and not allowing any other private property to be placed curbside[8]. Ostensibly, market forces could correct problems of lack of parking at private buildings, and laws could allow for broader use of curbside spaces. However, the automobile again receives priority in the eyes of the law. Furthermore, this effort to enforce the dominance of the automobile has been at the cost of public health and safety.

            Moving on from land use regulation, Professor Shill takes a look at a litany of other subsidies. He bifurcates these remaining subsidies into two groups for analysis. First, he looks at laws that regulate systems, like laws that target the manufacture of automobiles. From a manufacturing standpoint, The United States has increased its focus on the safety of vehicle occupants in the event of a collision. However, unlike many other nations, it has not focused at all on how manufacturing changes may aid the safety of a pedestrian.[9]This overemphasis on occupant safety also endangers pedestrians via moral hazard. Evidence suggests that because drivers feel safer in their vehicles, they actually drive more recklessly. Much like the man who smokes on his couch because he has fire insurance, drivers feel more insulated from the consequences of their actions due to the automobile’s safety features.[10]Of course, this calculus ignores pedestrians, who, despite being more vulnerable to death or serious injury in a crash, take the proverbial back seat to driver safety.

            Professor Shill also examines laws that regulate private conduct, such as tort, contract, and criminal law. All of these areas of law subsidize driving at the expense of non-motorists. In tort law, drivers who are sued for injuries arising out a collision are held to a negligence standard, despite the fact that the uncommon hazards of driving make it a good candidate for strict liability.[11]No-fault insurance may further insulate drivers from tort suits.[12]Contract law provides a poor vehicle for injured pedestrians to seek redress. Because pedestrians lack privity with the manufacturer, they are unable to bring a breach of warranty claim.[13]And finally, criminal law subsidizes driving through pervasive underenforcement.[14]

            In the article’s penultimate section, Professor Shill argues that large scale transformational change, and not merely incremental change, is needed to address the law’s bias toward driving culture. Because the law subsidizes driving across so many different contexts, it is important to meet the problem head-on, and Shill argues that laws that codify driving subsidies be repealed.[15]As such, Shill explicitly answers the question posed by the title in the negative.[16]

            Finally, Professor Shill discusses how self-driving cars may fit into this issue. He emphasizes that the possibilities presented by self-driving cars to alleviate some of the aforementioned problems but should be put into proper context. Self-driving cars are not a panacea that will arrive tomorrow, and consequently, the public should not feel complacent about the need to address automobile supremacy in the law.[17]

            Professor Shill’s article is forthcoming with The New York University Law Review. It may currently be found here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3345366.

 

[1]Gregory Shill, Should Law Subsidize Driving?, University of Iowa Legal Studies Research Paper No. 2019-03, New York University Law Review (forthcoming), (2019)

[2]Id. at 3

[3]Id.at 11

[4]Id.at 25, citing Robert J. Schneider et al., Evaluation of Driver Yielding to Pedestrians at Uncontrolled Crosswalks,

WISCONSIN DEPT. OF TRANS., 1,

https://wisconsindot.gov/Documents/safety/education/pedestrian/wipedstud...

[5]Shill, Should Law Subsidize Driving?, supra. at 25-26

[6]Id. at 52

[7]Id.at 53

[8]Id. at 55

[9]Id.at 75-76

[10]Id.at 77, citing David Leonhardt, When a Safety Net Can Lead to Risky Behavior, N.Y. Times, Mar. 18, 2008

[11]Shill,Should Law Subsidize Driving?, supra. at 86

[12]Id.at 88

[13]Id.

[14]Id.at 89

[15]Id.at 91

[16]Id.

[17]Id.at 92-95