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The laws that govern America's car-centric landscape are inefficient and unjust, according to Gregory Shill. The law professor at the University of Iowa breaks down how our complicated legal system establishes automobile supremacy in “Should Law Subsidize Driving,” and proposes a teardown of the regime. In the almost 100-page article, a draft of which was posted in March 2019—the full article will be published in the New York University Law Review next year—Shill points out how the country's car-dependent system favors drivers through indirect but abundant subsidies. Those subsidies, he says, decrease the cost of driving by allocating expenses to nondrivers and society at large, exacerbating preventable human suffering.
Shill shows that while agencies like the National Transportation Safety Board (NTSB) and Federal Highway Administration (FHA) call out speeding and other dangerous driving behaviors, they have failed to act to effectively curb them. Traffic deaths have spiked in the United States—eclipsing 40,000 in each of the past three years—and are a leading killer of children. An additional 53,000 people die every year from auto emissions, the top producer of greenhouse gases. Subsidies in the law—traffic, land use, tort, insurance, environmental, vehicle design, and tax, among other areas—push people into cars and make it cheap to drive recklessly.
Surprisingly, “the sources of law that directly regulate the use of the street are largely absent from law and policy conversations around mobility” and the public right of way, Shill writes. He urges “a basic reorientation of relevant law towards consensus social priorities, such as health, prosperity, and equity.” Until then, the law professor says he considers the status quo an ongoing public health and climate emergency, which law helped to create and will sustain.
Here, read on to learn Shill's key points.
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Law Professor Gregory Shill notes that speeding is associated with one death every 47 minutes, and that every year, excessive speed is a top risk factor for motor vehicle crashes on par with intoxication. Exceeding the lawful limit by even 10 miles per hour seldom is punished, though, and some jurisdictions expressly forbid automated enforcement of speed laws even though it has proven to save lives.
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Speed limits are generally set by statute, but under federal guidelines they are adjusted based on how fast people actually drive, even if they're breaking the law. The limit on a given stretch of road often is adjusted to the 85th percentile speed of free-flowing traffic on that stretch regardless of the posted speed limit. This leads transportation departments to ratchet speed limits upward, which rewards dangerous driving behaviors. The NTSB and other safety groups have criticized the scientific basis of the 85th percentile method, and the Federal Highway Administration has said it's optional. Still, it remains nearly a universal standard.
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Virtually everyone has had a hard time finding a parking spot, but this common frustration masks a deeper truth, law Professor Gregory Shill says—that the country is awash in parking. He points out there may be as many as 2 billion parking spaces in the United States, which is no accident. Shill shows how it's not a response to market forces, but instead reflects mandates at the local government level. In the post-World War II era, he says, planners around the country established minimum parking quotas that required developers to overbuild off-street parking irrespective of demand, which suburbanized cities and curbed walking by creating a landscape hostile to people on foot.
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Almost every municipality in the United States has land-use regulations about population density in new housing, ranging from floor-area restrictions to minimum lot-size requirements. Law Professor Gregory Shill shows how the zoning code of the tiny New York City suburb of Scarsdale establishes, in some areas, lot-size minimums of 10,000 to 20,000 square feet and bars construction of anything but single-family home on those lots. He points out that the ordinance allows extra land on these lots for swimming pools, tennis courts, and even horse stables, but not for additional housing. Ultimately, Shill says, Scarsdale makes it easier to build housing for ponies than for people.
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Environmental regulations of vehicles are doubly flawed, according to law Professor Gregory Shill. He points out how regulations focus narrowly on fuel economy, and ignore, for example, particulate emissions generated by tire and brake pad wear. One study found these accounted for 85% to 90% of toxic particulate emissions from cars, causing cancer and a host of other diseases. Second, Shill shows how environmental regulations grant special treatment to large vehicles, including vans, SUVs, and pickups, which has led some carmakers to ditch cars for those bigger vehicles that create more hazardous emissions.
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Law Professor Gregory Shill says that while more than 40 countries require carmakers to consider the impact of crashes on pedestrians, the United States does not. “We don't even require carmakers to minimize dangers to other cars...” Shill said.
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Aftermarket products take advantage of gaps in U.S. vehicle design regulations, according to Professor Gregory Shill, who points out, for instance, how the large metal bars, originally added to the front of police cars, are now installed on many private vehicles. He said the metal or “bull” bars, which are not regulated by U.S. law, defeat certain vehicle safety measures, and can amplify injuries to pedestrians. Shill notes that a member of the British Parliament said the front-end metal structure “concentrates and magnifies the force of the collision in a tiny area,” and can turn trivial accidents into fatal ones. In response, the United Kingdom has banned them. The United States, Shill says, should follow the U.K. example.
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Professor Gregory Shill notes that motorists are not required to carry personal injury liability policies adequate to compensate pedestrians who are seriously injured, adding that pedestrians often suffer grave injuries compared with passengers in vehicles involved in accidents. At least two states don't require this type of coverage at all, he says, while in three of the nation's five most populous states—California, Florida, and Pennsylvania, with nearly 75 million total residents—the mandatory level of insurance for bodily injury is between zero and $15,000.
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The mortgage interest deduction in federal and state tax codes makes it cheaper to borrow money to buy a house, according to law Professor Gregory Shill. He shows how, through the lens of existing home building restrictions and parking quotas, the mortgage interest deduction has fueled suburban sprawl, which de facto requires driving by rendering other forms of transportation too costly or impossible.
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Every state offers incentives for purchases of so-called green vehicles that still rely on traditional brake pads, tires, and other equipment that generate large amounts of toxic and cancer-causing emissions, according to Professor Shill. He adds that green vehicles, like all other motor vehicles, can still kill their users, as well as pedestrians and bike riders, when they crash.
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Tax law subsidizes certain transportation modes for commuting purposes at different rates, according to Professor Shill, who says its formulas favor car commuting over public transit, biking, and employer van pools. Walking—usually the healthiest travel method, which society has the greatest interest in promoting—is not subsidized at all, he adds. He says walkers, people who ride the bus, and people who bike effectively pay drivers to drive to work.
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The dangers associated with driving are ubiquitous—it kills more Americans annually than any other activity—but reckless drivers ironically receive more deferential treatment under tort law, according to Professor Shill. He says tort law subjects activities to either negligence or strict liability, the latter being more restrictive: It holds people fully responsible for the harm that flows from their conduct, even if they were being careful. Strict liability is reserved for activities that are both ultrahazardous and uncommon, such as the transport of explosives or ownership of a wild animal.
“Driving as we know it today is probably ultrahazardous—no other activity kills 93,000 Americans every year (40,000 in collisions, 53,000 because of harmful emissions)—but it's widespread,” Shill says, adding that it's governed by a deferential negligence under which plaintiffs are subjected to steep burdens of proof.
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An owner of a vehicle that has a manufacturer's defect that causes him to crash and injure himself can sue the manufacturer in either tort or contract law, Professor Shill says, adding that the latter claim has the advantage of imposing a lower burden of proof on the owner. Meanwhile, if the motorist hits a pedestrian, the pedestrian can only sue in tort law, because he lacks a contractual relationship with the manufacturer. Shill says this subjects the injured pedestrian, or any other third party, including another driver who lacks a relationship with the manufacturer, to a higher standard.
“Because of the restrictiveness of the tort regime as it applies to driving, contract law could be a useful way for victims to get some measure of justice, but it is denied to pedestrians outright, as a matter of law,” Shill says.
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Laws protecting pedestrians are rarely enforced, even against hit-and-run motorists who kill their victims, according to Professor Shill, who says many states have vehicular manslaughter statutes that carve out a special, lesser category of homicide—with lighter penalties—than other types of unintentional killings. “This may be necessary in some cases to secure a jury's guilty verdict, but it is also an implicit acknowledgement of failure: it says, basically, that since our car-based transportation system requires some users to kill others, it would be unfair to force those who end up doing the killing to shoulder the full burden of a broken system,” Shill says.