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The libertarian cell-phone car wreck lawsuit theory

Post by Patrick O'Callahan on March 12, 2010 at 4:28 pm with 15 Comments »
March 12, 2010 4:38 pm

This post on the Evergreen Freedom Foundation’s blog is the kind of thing that makes libertarian types look so goofy.

The apparent logic: Some people can drive safely while jabbering into cell phones, so the law ought to permit anyone to drive around with one hand on the wheel and the other fiddling with the phone. Otherwise, we’ve got a “police state” on our hands.

As a guy who’s been hit more than once by inattentive drivers, I’ll point out that driving isn’t a right; it’s a privilege. Letting cops take preemptive measures against unsafe practices isn’t exactly Stalinism. The rules aren’t written for the convenience of the best drivers; they’re written to protect me and everyone else from the worst drivers.

I’m sure there are people who can competently handle a car with .10 percent of alcohol flowing in their veins and people who can avoid killing someone with .15 percent. That doesn’t mean we ought to ditch the presumptive intoxication standards.

The blogger’s solution for cell-phone drivers: Sue the chatterbox if he hits you. That’s assuming you survive. I’d just as soon not get hit in the first place.

Leave a comment Comments → 15
  1. UaskYIaskYnot says:

    Be aware my question mark key has asked it’s last question. I will use $. to replace this symbol.

    I have searched for this law that says it is a privilege to pay taxes for public roads so I can have the privilege of driving to work. Does this law come under the same law that says driving is a privilege only for the financially privileged$.

    Right now at this very moment I wonder how many uninsured motorists are driving because it is their privilege to eat before they go to work. Could someone please tell me what code , rule, law or constitutional amendment states driving is a privilege$. I want to read it.

  2. Finding — Intent — 1998 c 210: “The legislature finds that driving is a privilege and that the state may restrict that privilege in the interests of public safety.

  3. I thought the Utah study concluded that talking on a hands-free cell phone was just as dangerous. Yet the bill still allows hands-free devices.

    see section 3 of Senate bill 6345.

  4. tiresias says:

    I don’t think there is anything goofy about this argument from EFF. In fact, it makes quite a bit of sense. If you are injured because of what someone else did, they pay for it.

    Prohibiting all people from doing something just because some people can’t do it correctly does not make logical or legal sense.

    I can drive eat pizza at the same time, and a cop can’t stop me for it. But if I have a plastic device held up to my ear, I’m a menace to society?

    It’s time to start penalizing the people who actually cause damage, not inconvenience successful multitaskers.

  5. tiresias: You are a successful multitasker, until you aren’t. That term implies doing multiple things simultaneously that are of equal priority. My problem is when you prioritize conducting an argument on the cell that takes more of your precious attention than driving your 2-ton car at 70mph on I-5. I would surely prefer not having damage caused to me at all, even at the expense of inconveniencing those who fancy themselves as successful multitaskers, than to have to exact compensation from someone who turns out not to be.

  6. In my post, I offered an alternative means of regulation and suggest that it may work better than the new absolute ban. There are interesting arguments to have about how well tort law works versus absolute bans and whether extending law to non-harmful behavior is corrosive to the very idea of law. I’m not sure what about raising these issues and offering alternative solutions is “goofy,” but perhaps your post is the kind of thing that makes journalist types look so shallow.

    For my part, the only accident I’ve been in was caused by the other driver not paying attention. When I lived in the D.C. area, I was an occasional bicycle commuter. Dangerous driving is, well, it’s dangerous, and I believe it’s immoral.

    All that said, I prefer the policy solution that works best to prevent actual harm. Eide’s bill is a blunt instrument that will make its supporters feel good about themselves, but I doubt it will reduce much harm and it has a social cost.

    Eide’s law punishes people regardless of whether they are actually dangerously distracted and fails to punish many people who will be actually dangerously distracted. And it will be haphazardly enforced. For these reason and others, many people will disrespect and disobey the law. And the most dangerous cell-talking drivers now are probably the people most likely to ignore Eide’s statutory nagging.

    All these are reasons why tort law works better: it forces people to internalize the risks that they create for other people. It isn’t haphazard, doesn’t use the police force, and generally corresponds with what most people consider “common sense.”

  7. johnearl says:

    Given the high potential cost of dangerous (AKA distracted) driving, and the unbelievable amount of carnage that occurs on the roads of Washington state every day, there is a legitimate public interest in preventive measures rather than simply relying on punitive after the fact measures.

    In 1988 my car was struck from behind by a “distracted” driver. The settlement amount received does not begin to compensate for the the last 22 years of medical treatment, let alone the pain and discomfort. As I sit here, crooked in my chair attempting to relive the back pain, I am quite sure that no amount of money would be worth what I endure.

    But I was lucky, I lived. Where the “Sue ‘em after the fact” theory really breaks down is after a loved one has been snatched from this world. At that point any discussion of after the fact compensatory punishment rings pretty hollow.

  8. John, your story is heart wrenching, but you assume that just because something is banned, it won’t happen. The law isn’t magic, it requires people to choose to comply. And tort law doesn’t just work after the fact, it creates its own set of disincentives that I argue may be more effective for these behaviors.

  9. johnearl says:


    I assume that if something is banned, that Law Enforcement can take preventative steps to reduce the incidence of that thing.

    I also assume that the threat of criminal punishment will be more effective than the threat of civil punishment both because Law Enforcement is an active and present deterrent on the roadways, but also because civil action takes far more time, is only available to those with the means to pursue it, and in the case of auto accidents the people who need to be deterred are shielded from direct financial pain by their auto insurance policies.

    The most fundamental problem with your line of reasoning is that it appears that it attempts to apply libertarian principles to a communal resource. It ignores the concept that the state’s roadways are shared, _public_, resources, and that their use can and should be regulated to maximize their value to the citizenry and to minimize the daily carnage that occurs on the roads.

    Your argument that a cell phone ban is unjust collective punishment, if successful, could also be extrapolated to vehicle speed, driver intoxication, and even adherence to traffic light signals. That argument would then permit a whole host of dangerous activity that would turn the public roadways into far more dangerous and for less productive public resources.

    I would argue that if someone wants to build their own private roads on their own private property, then they have the right to get stinking drunk and blast through red lights at 100 miles an hour while talking on their cell phone on that property. But when you use shared public roadways, you implicitly consent to being regulated by public laws that are designed to protect citizens from (statistically) bad practices, even if you are sure that your own exercise of those practices is less dangerous than the norm.

  10. AinslingersFolly says:

    I have to admit the posts by johnearl and trent may be the most well thought out, well spoken posts and rebuttals I have ever seen in a comment section.

    I also have to agree that johnearl has successfully presented the case for why traffic regulation is in place and defined our roads as public resources.

    good job to both I enjoyed the points and counterpoints presented.

  11. I actually think driving while intoxicated is a great example that tends to substantiate my argument. How does that enforcement process work?

    Law enforcement actually sees someone driving in a way that suggests the driver is intoxicated, that is, driving dangerously, and pulls the person over. Even if it turns out the person was changing radio stations, just spilled coffee in his lap, or had a sneezing fit, the interference is reasonable. The officer has witnessed actually risky driving, investigates, and if the person is intoxicated, they are arrested.

    So how about this: change the cell phone law to require that the officer not only witness the person talking on a cell phone, but also witness actual dangerous behavior (bad lane control, etc.)? Such a law would be reasonable, corresponding with common sense and supporting rather than undermining the rule of law.

    As to the other traffic laws mentioned, it is reasonable to require actual rules of the road: speed ranges, other protocols, basic standards for vehicles. Those restrictions should be designed to provide a threshold level of order, the classic “rules of the road.” (Though I’m told Montana’s accident statistics were better during the period when they had no daytime speed limit; if that’s true, it’s intriguing.) The difference is between providing order and trying to use force to create, as the graphic in my blog post suggests, autopia. You can create basic order; you cannot create autopia. In fact, the downside risks of trying to create the latter may seriously impede the maintenance of the former.

  12. johnearl says:


    You agree that it is reasonable to require rules of the road that regulate things such as speed, vehicle standards, and other protocols. But you equate the regulation of ‘hands-on-the-phone’ cell phone usage with police state tyranny. Therefore it is difficult for me to see where you would draw the line between “reasonable requirements” and “tyrannical autopia”.

    So just what is the criteria by which we might judge the difference between a reasonable “rule of the road” and an unreasonable infringement on God-given liberty? If the difference is that you don’t believe the research that finds ‘hands-on-the-phone’ driving dangerous, that is, perhaps, a reasonable point of view. But that doesn’t make people who hold opposing views advocates for a police state.

  13. Patrick O'Callahan says:

    Let’s have another go at this beauty-of-torts theory, Trent and tiresias. On Saturday, I was hit AGAIN by ANOTHER inattentive driver, rear-ended on Interstate 5 when traffic slowed.

    Nice guy, but he’s got no insurance, expired tabs and probably not a penny to his name. So tell me how the wonderful civil justice system was going to recompense me (after a maybe 2-3 year lawsuit and 30 percent contingency fee for my attorney) had I suffered serious injuries.

    I don’t know if he was on a cell phone or not. The point is, he wasn’t paying attention and he had no way to cover my injuries. Believe me, the tort system is worthless unless the other guy’s got something to lose – and a lot of drivers don’t. As for it being a deterrent, I don’t know anyone who wants to cause a crash, it’s just that there are so many incompetent drivers on the road. The hypothetical threat of a lawsuit won’t deter the clueless and penniless, but as John Earl notes, the immediate presence of cops on the road has a wonderful way of discouraging dangerous behavior.

  14. Sorry to hear about your accident. I assume the other driver was cited for failing to abide by the ban on “following too close”? The legal prohibition didn’t protect you, which seems to undercut your argument more than it does mine.

    The assumption that government can achieve any and all ends through edict and force is, shall we say, questionable.

    The tort system is no panacea (there are plenty of problems with it, including its often molasses pace, as you point out), but as your experience shows, neither are bans on conduct. Both of these forms of regulation, if used appropriately, can help us live in a safer and more orderly society.

  15. trustsatan says:

    I too, liked the back and forth in the comments on this post. I fall strictly on the “legislate it” side of the issue; like helmets and seat belts, some of those whom Darwin did not favor require coercion by authority to exercise common sense – especially when, in choosing not to follow their instincts for self-preservation, these same lackwits present others with mortal danger.

    Look at safety belt compliance rates over the past few decades and tell me that legislating common sense on that issue didn’t have an effect. Our laws take time to catch up with technology, that is the only thing that is certain.

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