Let Private Lawyers, Not Police, Govern Cellphone Use While Driving

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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18 Responses

  1. jimbino says:

    Stupid argument. A person who has 3 beers and then drives a car is, of course, far less culpable than a person who, while driving, engages in dangerous activities like oral sex, cellphone talking or disciplining bad kids in the back seat.

    Get real.

  2. David Drelich says:

    I don’t buy the premise. Strict liability does not relate to the social utility of the activity being regulated, but to the need to protect third parties from otherwise unavoidable risks. This was true under common law, and remains true under certain statutes, such as the Clean Water Act and, historically, the 1938 Federal Food, Drug, and Cosmetic Act. If persons put at risk cannot recognize the risk or defend against it, they need the government’s protection in the form of strict liability rules. It is much better to publicly regulate cell phone use beforehand than privately sue after suffering injuries in a crash.

    My objection to cell phone laws is that they are just one form of reckless driving, and therefore redundant.

  3. anon says:

    I buy your argument, and would extend it to just about all activity between private persons. Whether an activity should be a civil wrong depends on the details, and per se rules shut out all manner of socially beneficial behavior. Read Bruno Leoni’s “Freedom and the Law” for the details:

    http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=920

  4. Dave says:

    Presumably, use of a cellphone while driving already is prima facie evidence of negligence, as it is violation of a statute (Martin v. Herzog).

    Yes, other things besides cellphones are dangerous. Other things besides speeding are dangerous, too. And other things beside drinking and driving. Heck, it’s not that dangerous to drive without a license, or without brakes, or without all four wheels. Why not get rid of all the statutory prohibitions against these things, and just let the lawyers handle it? For that matter, who needs criminal law? It let OJ off, but the tort lawyers certainly got their man.

    You can also make the argument that speeding has social utility. You could even argue that blowing through stop signs has social utility. Think of the energy savings if one did not need to come to a full stop every block, but instead just “eyed-it”!

    Or, here’s another idea: GET OFF THE PHONE.

    As a motorcycle rider who is acutely aware of other drivers’ level of focus, I can tell you (without any concerns about the irrelevance of anecdote) that >95% of the egregiously bad driving I witness involves someone on the phone. People drift into other lanes, fail to see stop signs and red lights, don’t use signals, react slowly, and are unaware of other drivers, pedestrians and cyclists. It’s not the same as the radio, since people are not concerned with either insulting the person on the other end or missing vital info. And it is not the same as momentary distractions, because it is more demanding over longer periods of time than other oft-mentioned distractions. Really, they should ban drivers being on the phone… the handset is not the relevant factor in the lack of focus, but rather the conversation itself.

    If you have to make a call, pull over. If you don’t want time in traffic to be wasted, move closer to work. Other than that, get over yourself. You are not so important that whatever you are jabbering about is worth putting other peoples lives at risk. Since the rest of us do not have a choice in sharing a road with you, I don’t think it is too much to ask you to devote yourself to driving while you are responsible for a one-ton chunk of steel hurtling through space at 65 mph.

    Finally, I think your legal analysis is wrong. I don’t know of any legal theory other than your claim here whereby we only outlaw traffic behaviors on the basis of some magical calculation of the inherent danger versus social utility. There is some commonality in limitation of externalities. But more often than not we are outlawing behaviors with significant externalities that people would engage in a lot more but for the law outlawing it (under the famous Hand formula, they are behaviors where the probability of harm in any one instance is low, but the magnitude of harm is great… say, killing a family. But since 99.x% of the time you can get away with it without killing someone, one tends to not perceive how dangerous it is). Drunk driving, speeding, and talking on cell phones are all behaviors that absent laws against them people would engage in more often without regard to the risk. Further, without laws against those behaviors, there would not be a basis for negligence, as most people would still engage in them, and thus the “reasonably prudent person under same or similar circumstances” would also probably engage in them.

  5. Jens says:

    “Moreover, cellphone use while driving permits important social benefits. It boosts productivity by decreasing time wasted in traffic.”

    What about taking the train?

    Btw, where is the additional social benefit from holding the phone instead of using a hands-free speaking system?

  6. Jens says:

    “It would also significantly increase the costs of commuting,” – I think that is a quite desirable effect, as it decreases fuel consumption and urban sprawl.

  7. Jack S. says:

    Besides agreeing with the counterarguments here, I’ll add my 2 cents.

    What sort of private litigation did you have in mind? Wrongful death suits stacked on top of an involutary manslaughter criminal charge? Given the substantial risk as demonstrated through empirical evidence (real accidents, real people dying) and various studies I would think an ex ante penal sanction would be far better than an ex poste civil litigation.

    “Moreover, cellphone use while driving permits important social benefits. It boosts productivity by decreasing time wasted in traffic.”

    What about the wasted productivity of others? I’m not talking about when you’re stopped in a traffic jam or at a light but rather when the person talking on the phone is no longer driving the speed limit or not maintaining their lane position. How much does that affect everyone else’s productivity?

  8. Matt says:

    My understanding is that the studies done (I’m not sure if it’s the one considered by Saleten or not- I generally don’t find him worth reading) conclude that using a cell phone is significantly _more_ distracting than the other things you mention, so if they are right then the comparison isn’t really valid. There’s social value in drunk driving, too- more sociability, less money on cabs, etc.

    The other problem is that people can enforce this only very imperfectly- it may be hard to prove or not worth the time. Some of them will be dead, and so on. Given these factors I think your completely wrong on this one and should just suck it up, pay the fine, and stay off the cell phone while driving.

  9. Dave Hoffman says:

    If Matt is right – and I try not to let the facts get in the way of a blog post – then I’m certainly wrong. But it strikes me that some of the other commentators are making empirical arguments without empirical support (i.e., that cellphone use is more distracting that talking to another passenger or than listening to the radio). Maybe that’s right, but if it isn’t, shouldn’t that change your view? On whether the private parties’ benefit matters to a SL analysis, consider Posner’s opinion in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.. It certainly mattered there!

  10. bill says:

    NHTSA suggests that studies do not show definitively that cell phone use is more distracting than other behavior.

    http://www.nhtsa.gov/portal/site/nhtsa/template.MAXIMIZE/menuitem.54757ba83ef160af9a7ccf10dba046a0/?javax.portlet.tpst=4670b93a0b088a006bc1d6b760008a0c_ws_MX&javax.portlet.prp_4670b93a0b088a006bc1d6b760008a0c_viewID=detail_view&itemID=d01bab6383f62010VgnVCM1000002c567798RCRD&overrideViewName=Article

    That said, given the high volume of cell phone use while driving compared to, say eating or combing their hair — few could or would want eat continuously during two hours of driving — it seems fair for the legislature to come to a “rough justice” approach that keeps people from driving the Thruway at 65 mph while chatting on their phones all the way from Buffalo to NYC but lets them eat big macs for perhaps a total of 20 minutes of that drive.

    I do not see why the question of whether and how the volume of risk creation ought to matter should not be a legislative judgment. It may well be that the the cost-benefit of allowing some cell phone use is positive, but that the cost-benefit of permitting cell phone use and allowing a race to bottom of distracting and universal overuse might actually be negative. In the absence of clear empirical answers, this judgment seems like what politics is for.

  11. Dave says:

    Dave-

    Indiana Harbor Belt was about imposition of SL in tort under the common law. It was decidedly not about legislative regulation of behavior ex ante, which is the topic you brought up and which I responded to.

    Empirical support:

    Cell phone use increase fatalities:
    http://www.scienceblog.com/cms/cell-phone-studies-while-walking-or-driving-cell-phones-increase-traffic-pedestrian-fatalities-19187.html

    Drivers distracted more by cell phones than passengers:
    http://esciencenews.com/articles/2008/12/01/drivers.distracted.more.cell.phones.passengers

    Cell phones add braking distance, cause other driving errors:
    http://esciencenews.com/articles/2008/12/03/hands.free.cell.phone.conversations.add.5.m.drivers.braking.distances

    Reasons why cell phone use is more distracting than passengeres, radios:

    http://www.psych.utah.edu/AppliedCognitionLab/TRB1.pdf

    “Our data further suggest that legislative initiatives that restrict hand-held devices but permit hands-free devices are not likely to reduce interference from the phone conversation, because the interference is, in this case, due to central attentional processes.”

    Wow, while writing this comment I heard the squeal of tires and the thud of a crash outside my apartment. Only minor injuries, everyone is walking. Couldn’t tell you whether it was cell-phone related or not, but scary nonetheless!

  12. Kaimi says:

    Nice analysis, Dave. I’m driving to work right now so I can’t leave a lengthy reply, but I’ll try to say more once I get to the office.

  13. Dave says:

    Dave-

    Indiana Harbor Belt was about imposition of SL in tort under the common law. It was decidedly not about legislative regulation of behavior ex ante, which is the topic you brought up and which I responded to.

    Empirical support:

    Cell phone use increase fatalities:
    http://www.scienceblog.com/cms/cell-phone-studies-while-walking-or-driving-cell-phones-increase-traffic-pedestrian-fatalities-19187.html

    Drivers distracted more by cell phones than passengers:
    http://esciencenews.com/articles/2008/12/01/drivers.distracted.more.cell.phones.passengers

    Cell phones add braking distance, cause other driving errors:
    http://esciencenews.com/articles/2008/12/03/hands.free.cell.phone.conversations.add.5.m.drivers.braking.distances

    Reasons why cell phone use is more distracting than passengeres, radios:

    http://www.psych.utah.edu/AppliedCognitionLab/TRB1.pdf

    “Our data further suggest that legislative initiatives that restrict hand-held devices but permit hands-free devices are not likely to reduce interference from the phone conversation, because the interference is, in this case, due to central attentional processes.”

    Wow, while writing this comment I heard the squeal of tires and the thud of a crash outside my apartment. Only minor injuries, everyone is walking. Couldn’t tell you whether it was cell-phone related or not, but scary nonetheless!

  14. Dave says:

    I wrote a comment re: empirical support and Indiana Harbor Belt, but apparently it is “awaiting moderation” for some time now.

  15. Dave says:

    Ah, there it is. Thanks! I imagine there was an anti-spam issue triggered by all of the hyperlinks. Regardless, it’s always a warm feeling to know one’s thoughts have been approved!

  16. TJ says:

    I think you are confusing strict liability with criminal liability. If an activity is unreasonably dangerous but causes no harm, then there is nothing to be strictly liable for (who is going to sue you)? It is for harmful activity that we have the choice between negligence and strict liability as methods of allocating loss. And we impose strict tort liability on all sorts of things that are socially productive (e.g. strict products liability, transportation of ultra-hazardous materials, etc. etc.). If an activity has no social utility whatsoever, we usually criminalize it, not impose strict liability for it.

  17. Jens Müller says:

    “is unreasonably dangerous but causes no harm” <– you are referring to an concrete instance (umm, do jurists understand that computer science terminology?) of an activity here?

    If a certain _kind_ of activity never causes harm, it’s not dangerous, unless I understand the term “danger” in a severly different way than you.

  18. Jens Müller says:

    Ah, and why that confused me so much: You can only decide whether to impose strict liability on the general level, for a _kind_ of activity, right?