A draft of my latest Article, Should Law Subsidize Driving?, is now up on SSRN. I’m happy that it has begun to attract a readership in its first 24 hours (about 120 downloads). The Article conducts a law and economics analysis of every field of law that touches on driving, and infuses it with the best work from half a dozen other fields from public health to traffic engineering, before concluding that law subsidizes driving extravagantly and pervasively. This creates immense negative externalities that are not tracked with any comprehensiveness or rigor.
The Article also introduces a novel term, automobile supremacy, to describe the systematic discrimination that law practices—in hidden, often unintentional or counterintuitive ways—against not just other forms of transportation but virtually all other social objectives in service of the car.
It’s my most ambitious work yet, and parts of this draft will almost certainly be edited down and shifted to a book project. Feedback is most welcome.
Should Law Subsidize Driving?
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 public and private 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 producers of greenhouse gases. They rack up trillions of dollars in direct and indirect costs annually, and the most vulnerable—children, the poor, and people of color or with disabilities—pay the steepest price. The appeal of cars’ convenience and the lack of meaningful alternatives has created a public health catastrophe.
Many of the automobile’s social costs originate in the individual preferences of consumers, but an overlooked amount is encouraged—indeed enforced—by law. Yes, the U.S. 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 emergency but legitimizes it, extending its longevity.
The Article urges a teardown of this regime. It also calls for a basic reorientation of relevant law towards consensus social priorities, such as health, prosperity, and equity.