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Abstract
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American streets have become increasingly dangerous. 2020 saw the highest year-over-year increase in roadway death rates, and the last year for which we have data on non-drivers, 2018, was the deadliest year for pedestrians and cyclists in three decades. This resurgence of road violence has many complex causes. We might blame ever-rising speed limits, unevenly enforced traffic laws, low gas prices, and increased driver distraction. We might shrug our shoulders and call road violence a natural consequence of our collective desire for speed and convenience. But these explanations overlook something important: Other, similarly-developed countries are experiencing the same economic and behavioral trends. In other countries, people love cars, too. And yet comparable fatality rates for non-drivers over the last 30 years, even in car-crazy Germany, are a small fraction of American fatalities.
What explains the gap? Are Europeans simply more careful walkers, better-equipped bikers, or safer drivers? Certainly not. What is different are the rules of the road. Simply put, American laws lock in two interrelated design problems: unfriendly streets and unsafe vehicles. Bad street design would not be so deadly if vehicle design standards were better, and vice versa. Yet both sets of standards have evolved, in tandem, to favor drivers and their passengers over any other street users.
Street design, centralized through national, nongovernmental standards developed in closed-to-the-public processes, tends to prioritize vehicle movement. These standards dictate generously wide lanes that facilitate fast driving. They allow inadequate widths or locations for sidewalks and bike lanes, where such amenities exist at all, making walking and biking unsafe. And they call for signals that smooth and speed car travel, threatening people in small cars and non-drivers. Judicial decisions on preemption and sovereign immunity have deterred sub-national innovation to these car-centric standards.
Vehicle design guidelines, also mostly centralized, also fail to protect non-drivers. As larger cars flood the market, regulators fail to reign in weight and height, despite studies showing heavier cars protect occupants but hurt non-occupants during a crash, and that taller cars make it more likely a non-driver will end up under the car, dead, instead of on the dashboard, injured. Similarly, regulators have not yet dealt with equipment such as "bull bars" attached to the vehicle's front, which strike non-drivers in the more deadly chest area, rather than the legs. Beyond the direct impact of crashes are the indirect impacts of greenhouse gas emissions. Transportation generates the largest share of greenhouse gases--28.2 percent--of any sector tracked by the EPA. Because of weak emissions standards, drivers spew toxic fumes into the air, sickening and killing other people and themselves. The devastation is inequitably wrought. The same groups most vulnerable to death by vehicular impact--the elderly, people of color, the poor, and people living in urban areas --suffer most from the effects of vehicular pollution.
Street and vehicle design standards have become more centralized, and they are heavily influenced by industry groups that structurally favor, or at least overrepresent, car-manufacturing interests. In that sense, these standards are a classic case of industry capture and fail to adequately represent non-industry parties.
Assuming, as I do, that law and legal culture play a definitive role in ensuring inequitable but avoidable outcomes, one potential remedy might be to direct reforms exclusively toward loosening the grip of industry on national standards-making processes. While this should surely happen, industry capture is just a symptom of an underlying problem: that laws and legal culture assume that uniform, national standards are preferable to state-government involvement in vehicle design and state or local government involvement in street design. In and of itself, centralization is not entirely problematic. For certain design features, like the shape and color of stop signs or the general dimensions of vehicles, national standards make sense. But other design characteristics, such as width of street lanes and strong vehicle emissions system rules, may be better or more easily made by subnational governments. A potential benefit of subnational regulatory authority is that innovation may influence upward, improving national standards...
Protecting liberty--including first and foremost freedom from bodily harm by government--includes viewing design standards through a rights- based lens that requires policymakers to enable, instead of thwart, beneficial outcomes. It seems unlikely that a national Ralph Nader-esque figure will emerge to fight for non-drivers who may not even participate in the industry being regulated. But the persistent "it will never happen to me" perception that drivers are immune from road violence must evolve. After all, each of us is a non-driver, even if we also drive.
We have chosen the wrong balance of power among federal, state, and local authorities, and we are paying the price. Our streets have become increasingly dangerous places, occupied by increasingly dangerous vehicles. The consequences of bad design can be measured in injury and even death. This Essay argues that this outcome results from a largely ignored failure in federalism. Reforming legal culture that has ossified street and vehicle design will help achieve three key value propositions offered by federalism: representation, innovation, and liberty. Preserving these three federalism values will both vindicate the dead and protect the living.
Language: en |