Should Law Subsidize Driving?

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.

In the United States, motor vehicles are now the leading killer of children and the top producer of greenhouse gases. Each year, they rack up trillions of dollars in direct and indirect costs and claim nearly 100,000 American lives via crashes and pollution, with the most vulnerable paying a disproportionate price. The appeal of the car’s convenience and the failure to effectively manage it has created a public health catastrophe.

Many of the automobile’s social costs originate in individual preferences, but an overlooked amount is encouraged—indeed enforced—by law. Yes, the United States 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 crisis but legitimizes it, ensuring the continuing dominance of the car.

The Article urges a reorientation of law away from this system of automobile supremacy in favor of consensus social priorities, such as health, prosperity, and equity.

Keywords: law and economics, driving, autonomous vehicles, tax law, tort, criminal law, environmental law, moral hazard, insurance, land use, state & local government law, vehicle design

JEL Classification: K00, K13, K14, K20, K32, K34, K42, R40, R48, R52