Let Private Lawyers, Not Police, Govern Cellphone Use While Driving
Will Saletan argues that some local government will soon ban possessing cellphones in the car. Shorter Saletan: “first, they came for the train conductors.”
Having just been ticketed by the Cornell police for driving while talking on a cellphone, I’m particular aware of the growth of anti-cellphone laws. (A side note: NY has a bizarre system of indeterminate fines that aren’t reduced to a sum until after you plead guilty to the offense. To the extent that this post is read by a municipal judge in Ithaca, I’d ask for mercy.) But the trend against cellphones should be resisted: we should regulate cellphone-motivated accidents through the private-party negligence regime, not the police-directed traffic liability system.
Deciding which traffic laws to enforce solely through private party lawsuits is a knotty problem, but I think the answer relates to the imposition of strict liability more generally. When an activity is unreasonably dangerous (drunk driving) and has little to no desirable social consequences, we make it unlawful even in the absence of harm to others. By contrast, when an activity has both positive and negative social consequences – like long road trips – we punish negligence (nodding at the wheel) only when leads to an accident.
Is cellphone possession and use so unreasonably dangerous, and so without public benefit, that we ought to treat it like drunk driving? Saletan thinks so, and cites a study that finds drivers equally distracted when drunk as when talking on the phone. (Not equally dangerous, which is what Saletan says the study claims.) And I’ll admit that there’s no reason not to force people to use hands-free devices.
But many things can distract drivers. Should we prohibit passengers? Especially younger ones, who sometimes have the habit of fighting in the back seat? How about radio? I’d be curious to see an experiment that compares people listening to Rush or Stern to those who are drunk. Those guys can really suck you in!
Moreover, cellphone use while driving permits important social benefits. It boosts productivity by decreasing time wasted in traffic. A rule that prohibited cellphone use, instead of forcing drivers to merely internalize the cost of use by making them liable for negligent driving, would chill conduct that we want to encourage. It would also significantly increase the costs of commuting, as individuals will once again have no recourse but to listen to the radio or hum quietly to themselves. So we should instead permit people to hold, and use, cellphones while driving. If they hit another driver or cause damage to another’s property, however, we should treat cellphone use as prima facie evidence of negligence.