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Rules of the Road: The Struggle for Safety and the Unmet Promise of Federalism

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Document pages: 42 pages

Abstract: American streets have become increasingly dangerous. 2020 saw the highest roadway death rates in 96 years, and the last year for which we have data on non-drivers, 2018, was the was the deadliest year for pedestrians and cyclists in three decades. Though this resurgence of road violence has many complex causes, what makes American roads uniquely deadly are laws that lock in two interrelated design problems: unfriendly streets and unsafe vehicles. Design standards articulate how streets and vehicles look and function. As they have been enshrined in law, they favor drivers and their passengers over any other street users. Over time, they have become more centralized, and they are heavily influenced by industry groups that structurally favor, or at least overrepresent, car-manufacturing interests. Thus, street and vehicle design standards are classic cases of industry capture and consequently fail to represent non-industry parties. But industry capture is just a symptom of an underlying problem: the assumption that uniform national standards are preferable to state-government involvement in vehicle design and state or local government involvement in street design. In and of itself, centralization is not necessarily problematic: there are compelling reasons to have national standards for certain design features, like the shape and color of stop signs or the general dimensions of vehicles. But other design characteristics, including width of street lanes and strong vehicle emissions system rules, may be better or more easily made by subnational governments. A potential benefit of subnational regulatory authority is that innovation may influence upward, improving national standards. Despite the possibilities, there are legal barriers to subnational participation. In addition to structural participatory barriers, courts over-broadly apply preemption and sovereign immunity doctrines.To understand these barriers, one must look beyond the capture story and explore relevant contours of federalism. Federalism is supposed to advance three values: representation, innovation, and liberty. These advantages are not visible in the laws or institutional framework establishing American street and vehicle design standards because federalism is not allowed to do its work. In exploring these interrelated issues, this Essay first covers the well-trod scholarly debates about federalism, then focuses on the three values federalism should advance. It delves deeply into the current dysfunction of street and vehicle design standards, and argues that these standards are emblematic of failed federalism. Finally, this Essay offers a theory for these failures: that legal culture has calcified regulation, including overcentralized and anti-democratic decision-making that stifles innovation that could save lives. The Essay concludes that legal culture must change to recalibrate the balance of regulatory authority in street and design standards. It is not enough to simply find new ways to reduce industry capture of national standards, though this should be done. We must also empower state and local governments to innovate toward better substantive outcomes. Ultimately, this Essay adds to federalism discourse by evaluating how it works in two important, interrelated regulatory spheres and promoting inclusive, innovative decision-making that protects vulnerable people and improves the public realm for all.

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