Eliminating Jaywalking Laws Will Make Roads Safer? A Response: NMA E-Newsletter #616

By Tom Pearson, NMA Alabama Member

Editor’s Note: The issue of abolishing jaywalking regulations, particularly where high-volume, inner-city streets are concerned, is a tricky one. In last week’s NMA E-Newsletter, #615, Arthur Miller made a compelling case that road safety suffers when one set of users (pedestrians) can cross the street whenever and wherever they like, and another set (drivers) is held responsible for dealing with the uncertainty involved. Tom Pearson provides a thoughtful rebuttal in this newsletter, presenting a rationale for eliminating jaywalking rules. 

Eleven years ago, NMA Newsletter #32, A Different Kind Of Distracted Driving, described how the town of Drachten, in the Netherlands, removed all traffic regulatory signs — and even street-to-sidewalk curbing — in the spirit of what Hans Monderman espoused, as noted by Tom in this newsletter. The result was fewer accidents and better overall road safety. 

But there is a key difference between eliminating all regulations, like what Drachten did, where every road user knows that having no rules actually means everyone is reacting to the same set of circumstances, and what New York City is proposing by eliminating jaywalking rules. In the latter case, the pedestrian (and presumably, bicyclist) class of road user is free to cross the road with impunity, leaving the driver to guess what each pedestrian’s personal decision-making behavior outside of normal crosswalk protocols will be, while also bearing responsibility for any mishap that occurs. 

Attorneys Miller and Pearson make solid cases on either side of the jaywalking issue. We present both for your consideration.

Eliminating Jaywalking Laws Will Make Roads Safer? A Response

I don’t usually comment, but I must speak up in opposition to aspects of this week’s newsletter.

Though certainly not appropriate for all roadways, I believe that the elimination of jaywalking rules is, in general, a very good thing. While rules are important, more important, is that everyone using the roadway space pays attention to what they are doing when using that space.

As the pioneering work of Hans Monderman has demonstrated, too many rules, especially those providing right-of-way to drivers or pedestrians, are associated with less attention to driving or walking in a shared space. The rule creates the psychological presumption that everyone knows and will follow the rule. The rule seeks to ensure safety and draws attention to the “rights” in the space rather than what is actually happening. Drivers and pedestrians assume that the rule has covered the safety aspects of the space and, therefore, they can relax. Relaxed, inattentive drivers and pedestrians cause accidents.

We don’t want people thinking primarily about rules when they are in shared spaces like roads. Instead, we want them to keep an eye out in an environment where not doing so often means the difference between life and death.

In this case, on the fly negotiations between users of the space using eye contact and a variety of signals is safer than implementing right-of-way rules. For accidents that occur, tort doctrines like the “last clear chance” work well in resolving liability in such cases.

Further, the author dismisses the racial component of law enforcement out of hand because the rule is neutral on its face. Well, so what? Every rule issued by a state is a potential point of bias or corruption because its enforcement relies on armed officers interacting with citizens. Because a significant number of officers don’t seem to be able to keep their personal biases out of or cannot resist abusing the power that comes with their law enforcement duties, it behooves us to keep their duties restricted to the enforcement of only rules that are absolutely necessary and effective for ensuring the liberty of the people to go about their business in a reasonably safe manner.

Absolute safety cannot and should not be the goal.

I share the author’s opposition to dirty license plates being a pretext for a police stop but wish that he could see that the same logic applies by and large to jaywalking rules.

I am also an attorney and, though I share the author’s concerns about road safety, I firmly disagree with much of what he advocates as a solution to road safety issues. As Monderman has demonstrated, making the rules in shared spaces ambiguous often results in safer use of the spaces as well as more efficient flow. In the experiments he carried out in a dozen European cities, he went so far as to remove all traffic lights and other indications of how one should navigate the space. That required users of the space to remain focused on the situation rather than using the “rules” as a psychological excuse for not devoting full attention to a risky activity.

That approach aligns the risks of everyone who uses a roadway with the necessity of paying attention and the benefits of staying alive. Reliance on rights of way, on the other hand, subsidizes inattentive behavior and makes everyone less safe.

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