This article explores what the legal, sociological, and scientific literature tells us about risky behavior and what the law can – and can’t - do about it. The article focuses on cell phone use – and the push to regulate it - as a parable about the limits of the law in regulating two things which Americans love – advanced technology and the freedom to drive. The article examines the risks – real and perceived – of motorists who drive while using their cell phones to talk or text, providing a scientifically grounded framework to analyze current and proposed laws to govern motorists’ cell phone use. The article has three major sections. First, the article reviews the available safety data and concludes that the actual risks of driving while talking on a cell phone are minimal, although these risks are elevated when dialing or answering a phone. In contrast, texting while driving is quite risky - more than twenty times more likely to cause an accident than normal driving. Second, the article explores the current political, media, and law enforcement landscape surrounding cell phone use. Drawing on what we know about the law’s deterrent impact (including both criminal law and tort law), and the vast literature on drunk driving and motor vehicle safety, the article contends that the current emphasis on banning “hand-held,” but not “hands-free” cell phone use is misguided. Government officials and safety advocates alike have demonized cell –phone wielding drivers, labeling them as selfish and highly dangerous. But in practice the likelihood of being stopped for violating a cell phone ban is so remote that most drivers ignore it, putting their need to be connected to work and family ahead of the miniscule odds of having an accident or being ticketed. Some studies have even suggested that current bans on texting while driving may actually be counter-productive, as drivers who know they are breaking the law will try to hide their texting, and thus take their eyes off the road for even greater lengths of time, increasing the chances of a crash. Third, the article contends that if lawmakers want to decrease cell phone use, especially texting, among motorists, they need to examine cell phone use in the broader context of distracted driving and provide financial and legal incentives to change driver behavior. This is particularly important for teenagers, who are more likely than adults both to have auto accidents and to text. Thus, states must expand and improve driver training programs to incorporate new research about the immature brain. At the same time, states should rely on tort liability and change in insurance rules to encourage cell phone manufacturers and carriers, as well as employers and insurers, to establish and enforce policies to decrease cell phone use, especially texting. Finally, the law should be used to spur technological innovations which could reduce or eliminate the potential distractions of cell phones while driving.
Linda C. Fentiman , A New Form Of WMD? Driving with Mobile Device and Other Weapons of Mass Destruction, 81 UMKC L. Rev. 133 (2012)