Citation

Shill GH. Iowa Law Rev. 2021; 106(5): 2107-2123.

Copyright

(Copyright © 2021, College of Law, State University of Iowa)

DOI

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Abstract

Like electricity, indoor plumbing, and the internet, transportation is important primarily because of the world it makes possible. A nation's economic and social potential are in significant measure determined by the quality of its transportation network, which in turn influences not only aggregate economic growth but the geography of development. In 1816, shipping goods 30 miles overland from Eastern ports cost as much as shipping them across the Atlantic Ocean from Europe. America's early cities thus "perched on the Eastern seaboard, clustered around ports from Boston to Savannah." Steamships and canals--and then railroads, highways, and airports--connected a continental nation, forever yoking American progress to transportation. But America's transportation story is not merely an anodyne tale of technological wonder and economic advancement. It is also a distributional story--one of policy decisions increasing power and comfort for some and dirty air and dangerous conditions for others; protecting desirable neighborhoods from marginalized races and classes of people and accelerating climate change in the process; and above all, creating an expectation that ordinary people become owners, operators, and insurers of costly heavy machinery in order to enjoy full citizenship, with all the upstream and downstream consequences that generates for individuals and society. Embedded in these policy choices are many conflicting claims to priority. Yet transportation is frequently represented as a technical field (and as a legal subject, a backwater) that is beyond politics or social policy.

The social and legal history of American transportation is one of contestation foreclosed. Little embodies power more than a rule dictating who must yield to whom--a power structure fortified by differences in the propensity to use different transportation modes by location, class, race, gender, age, and disability. But pitched debates on the topic began to be mooted a century ago, in the 1920s, by the twin growth of anti-pedestrian legislation and middle-class motoring, which was becoming an attainable aspiration. Together, these developments cleared the streets for cars by ridding them of people, especially poor children, people of color, and immigrants, who relied disproportionately on pedestrian use of streets.

To paraphrase William Faulkner, when it comes to these choices, the past isn't dead; it isn't even past. In this young century, over one million Americans have already been killed by car emissions. Within a few years, vehicle collisions will likely have added another million Americans to the century's driving-related body count. During the pandemic, politicians made headlines by comparing COVID-19 deaths to car crashes; for example, Wisconsin Senator Ron Johnson proclaimed, "we don't shut down our economy because tens of thousands of people die on the highways. It's a risk we accept so we can move about."

Whatever else may be said, the comparison betrays an underlying acceptance of traffic fatalities. Left unanswered is whether a different bargain might be possible.

This question began to be asked in earnest in the late 1960s. At that stage, wrote Marlon Boarnet and Randall Crane in a 2001 book on transportation planning...

Language: en