I Wanna Defy the Logic of All Texxt Laws*

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The problem: People talk on cell phones while they're driving. The solution: Ban them from doing it. New problem: People unable to talk on cell phones while driving turn to text messaging. The solution: C'mon, guess.

[U]nder a law that becomes effective March 1, the use of hand-held devices such as cell phones and BlackBerries will be banned in New Jersey, and text messaging while driving will be expressly prohibited. Violators face $100 penalties.

(The new law makes talking on a hand-held device or text messaging a primary offense. Currently, talking on a cell phone is a secondary offense; drivers must be charged with a first offense for an officer to cite them for cell-phone use.)

By the way, the research shows no linkage between cell phone use and vehicle crashes. No clue why lawmakers didn't think to back and legalize that far less-distracting method of telling your wife you're picking up Connor and Haylie from soccer practice while speeding back from the Motel 6 off Route 33 between Trenton and Freehold.

*Headline reference here. I think I used this recently, but not as effectively.

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  1. Arizona has already begun giving tickets for texting while driving. I believe the first was given a few days ago.

  2. Larry Craig was just trying to get around this law by using Morse Code.

    Yeah, that’s it. Morse Code.

  3. Headline reference: Sexx Laws, by Beck.
    Brilliant song.

  4. Young children in the backseat and/or a crabby spouse in the passenger seat are much more distracting to the driver than using a cell phone. What about playing with the radio to find the latest Snoop diddy? Hugely distracting, especially in CT.

    Morons.

  5. the use of hand-held devices such as cell phones and BlackBerries will be banned in New Jersey

    Banned in New Jersey!? They must mean banned while driving. Don’t they?

  6. By the way, the research shows no linkage between cell phone use and vehicle crashes.

    This really surprises me. I can’t remember the last time I saw somebody do something really stupid in a car who didn’t have a cell phone plastered to their face.

  7. Why don’t they just get to the point that they’ll end up at anyway: banning “distraction” and basically giving the police carte blanche (beyond even what they have now) to pull you over for any reason at any time, with no possibility of contesting it as they can say you looked “distracted”.

  8. RC,

    People do dumb shit while driving all the time…cellphone or no cellphone. As I mentioned in another thread, it’s just likely that they will have a cellphone…just as it’s likely that they’ll be wearing shoes…or chewing gum…etc.

  9. I’ll get worked up over seatbelt and helmet laws, but not something like this. If you’re big enough of a jackass to drive down the road with one hand on the wheel and the other (and your eyes) on your Blackberry, then you deserve a freaking ticket.

  10. (The new law makes talking on a hand-held device or text messaging a primary offense. Currently, talking on a cell phone is a secondary offense; drivers must be charged with a first offense for an officer to cite them for cell-phone use.)

    That didn’t take very long. One of the things they made a big deal about when states first passed cellphone laws was that drivers would only get a ticket for cellphone use if they had already been speeding, swerving, etc. Now we’ll have to worry about doing anything that come be construed as using a handheld device.

    By the way, wouldn’t dialing the phone come under “the use of hand-held devices such as cell phones”?

  11. Usually I’m on board with the car privacy thing, and standard libertarian disclaimer number whatever, but texting?

    It takes a special caliber of stupid to be texting while driving.

    A very special caliber…

  12. Kind of agree with dcpotts. Do I think this should be a punishable offense? No. But on the scale of things? I find this significantly less egregious than… well pretty much everything else.

  13. Warren: I’m with you.

    I can’t stand to read these stupid motherfuckers anymore because they cannot write.

  14. R C Dean

    I can’t remember the last time I saw somebody do something really stupid in a car who didn’t have a cell phone plastered to their face.

    The lady who made the left turn directly in front of me about 2 weeks ago didnt have one. She did have a smushed wheel well after I finished taking care of her stupidity. I just received my check from her insurance company, so I guess I can get my front end fixed next week. She was lucky I had only been on the road for about a block and wasnt up to full speed. She made a blind turn across a major road because the guy in the left lane waved her across. I was in the right lane.

    I really need to figure out how to turn off the stealth mode on my car. Since I got it a few years ago, I have been hit on the front, back and left by people who failed to see me. This last one was the first time I was actually moving during the accident.

  15. I don’t support the ban, but I don’t buy studies that say that cellphones don’t screw up drivers. They most certainly do. Not all drivers–at least, not to the same degree–but I’ve seen too many examples of it. If nothing else, there is a category of cellphone user who can’t drive faster than 30 m.p.h. while using a cellphone.

    Of course, driving badly is a skill many possess, with or without technological assistance.

  16. I don’t know, I might hold out for a “no texting while driving” law.
    I mean, talk about the fucking height of idiocy. People who do that are a clear and present danger, every bit (and probably moreso) than a drunk driver.

  17. easier solution: kill everyone who wants a car.

    at the very least i’d be living the high life! on a subway! EVERY STREET A BUS LANE!

    MWA HA HA HA HA HA HA

  18. uh, I text and drive fairly often. I don’t even need to look at the phone any more.

    Of course, I limit my texting while driving to 20 characters or less with no symbols.

  19. By the way, the research shows no linkage between cell phone use and vehicle crashes.

    Actually, there are a number of studies that link cell phone use with driving impairment. The one linked study that couldn’t prove that people talking on phones was directly related to crashes, but that only proves the people won’t fess up that they were on the phone when they rear ended the other person.

  20. I guess my point is that I disagree with the “no cell phones while driving” law because that can easily be subsumed under careless driving statutes, whereas “TWD” and “DUI” deserve to have their very own special category.

  21. The solution is to impose sufficiently punitive actions against anyone that causes an accident for any reason. There is no real need to differentiate between the various causes of why a driver is distracted and causes an accident.

  22. easier solution: kill everyone who wants a car.

    I have a car, but I wish I didn’t need to. Can I still live?

  23. I think there should be some kind of prize for when a blog assertion is directly contradicted by its link.

    As in this case:

    “while the authors’ results are intriguing, the jury is still out. The authors themselves concede that over 125 other studies argue a causal relationship between phone use and accidents”

  24. I live near an busy intersection with shops that appeal to women. My general observation is that bored soccer moms driving White Lexus SUVs with two kids in the back watching Barney DVDs will run an red light and almost take down grandpa with or without a phone plastered to their face.

  25. uh, I text and drive fairly often. I don’t even need to look at the phone any more.

    Of course, I limit my texting while driving to 20 characters or less with no symbols.

    Shouldn’t that read:

    “I txt n drv farly ofn! dnt evn need 2 lok @ teh phn!”

  26. Pro Lib-
    Word.

    Seriously, people are bad enough drivers as it is without text messaging.
    Cell phone use definitely impairs driving because I’ve never seen someone on the highway suddenly drop in speed by 20mph except for when they’re picking up and talking on the phone.

  27. I’m wondering if there isn’t any activity undertaken by a driver that the dedicated libertarian would not consider sacrosanct. How about sleeping while driving? Should that be illegal? I’m almost afraid of the answer.

  28. I’m wondering if there isn’t any activity undertaken by a driver that the dedicated libertarian would not consider sacrosanct. How about sleeping while driving? Should that be illegal? I’m almost afraid of the answer.

    How about if people get punished for things that actually happen, and not for possibilities? That would be nice.

  29. I think cell phones do impair driving, but I must admit I sometimes talk and text while driving anyway. I have a hands free device and I don’t really have to look at my phone to text, so I would suspect it would be hard to enforce a cell phone ticket against me.

    When things get tricky in traffic, though, I do usually tell the other person to shut up or that I will have to call them back.

  30. given a choice between facing a driver texting or talking, I’ll take talking.

    The ones you really gotta beware of are blond chicks driving black or red Suburbans (espc 4 Whl Drives). Those babes WILL mow you down without a second thought as they charge onto the freeway, cell phone welded to the left ear…..

    On a slightly different note, I had been told by Danny, my bartender, that it was illegal to eat and drive in Az. Wonder if that be true?

  31. < sings >
    let the handcuffs slip off your wrists
    I’ll let you be my chaperone
    at the halfway home
    I’m a full grown man but I’m
    not afraid to cry-y-y-y-y-y-y-y-y-y-y!
    < /sings >

  32. So I can empty my clip at a crowd of people and only get in trouble if I hit one of them?

    Um, I’ll pass.

    (And no, pointing out the quantitative difference between the danger posed by the two activities does not refute the point that it is foohardy to legalize the endangerment of others.)

  33. Blast you Weigel!
    *shakes fist*

  34. Ed,

    It’s more that I’m uncomfortable with giving police another primary infraction to write tickets for, especially when my state has people trying to get the fine raised into the 300-500 range. Considering that most cars have cellphones in them, how does a person prove that he wasn’t using it? Remember that with this NJ law you no longer have to be exhibiting dangerous behavior, putting your hand to your ear will be enough.

  35. Negligence is negligence. There is no need to criminalize every activity.

    Should people text while driving? No.

    Should we enact a law to prevent it? No.

    Just because some politician says it will make us all safer (debatable)or because it makes us feel better doesn’t mean we have to cede more power to the local municipalities or the States, so that they might generate more revenue.

  36. Just because some politician says it will make us all safer (debatable)or because it makes us feel better doesn’t mean we have to cede more power to the local municipalities or the States, so that they might generate more revenue.

    Agreed. People who want to text while driving will continue to do so. Only now, they’ll hold it lower to avoid detection, taking their eyes even further from the road.

    So really, this law will make things worse. Ahh, central planning is lovely, isn’t it?

  37. So I can empty my clip at a crowd of people and only get in trouble if I hit one of them?

    Overreaching just a little bit there, don’t you think . . .

  38. So I can empty my clip at a crowd of people and only get in trouble if I hit one of them?

    Ol’ hyperbole joe is at it again!

    DRINK!

  39. I have a hands free device

    I’m not convinced that it’s the physical placement of the phone to the ear — and not the engagement of the conversation — that causes accidents involving cell phones.
    In that case, maybe we should ban all conversations in vehicles.

  40. I’m not convinced that it’s the physical placement of the phone to the ear — and not the engagement of the conversation — that causes accidents involving cell phones.
    In that case, maybe we should ban all conversations in vehicles.

    Early studies showed that conversing with someone on a cell phone significantly distracted a driver while conversing with an occupant of the car did not. The study was unable to determine why.

  41. ED, YOU UNSHRIVEN FOOL, THESE LAWS ARE UNNECESSARY. IF THE URKOBOLD CAN DRIVE HIS CAR WITH NO SIGNIFICANT IMPAIRMENT WHILE RECEIVING SERVICE FROM THE WEIBSKOBOLD, WHY SHOULD THE URKOBOLD BE TICKETED? THE SAME QUESTION ARISES WHEN THE URKOBOLD WATCHES REPO MAN WHILE DRIVING.

    JOE, THE URKOBOLD PRESENTS YOU WITH A K?AN: “WHAT IS THE SOUND OF JOE’S SKULL CRASHING THROUGH A WINDSHIELD?”

    DOES IT MATTER WHAT GOES ON IN THE CAR, SO LONG AS THE CAR STAYS BETWEEN THE LINES? THE URKOBOLD THINKS NOT.

  42. Hands-on versus Hands-free does not address the mental aspects that seem to distract a driver when conversing on a cell phone.

  43. Joe – in order for your example to work, you have to remove the element of assault. If you are firing at people or into a crowd, that’s a good example of an assault (it reaches the level of reckless disregard for human life).

    A better example is if you went hunting and accidentally shot someone who looked alarmingly like a deer. While you might be liable for that person’s injuries, it is also likely that you wouldn’t be criminally charged (they call that the ol’ Cheney).

  44. how does a person prove that he wasn’t using it?

    Ask my sister. Her husband was driving in the great state of New York when Smokey pulled him over for talking on his cell phone. He wasn’t, and protested, and Smokey told him to tell it to the judge. Apparently he did not know my sister very well. She gathered the receipts for that phone’s usage on that particular day and proved to the judge that it had not been used at that particular time. Case dismissed.

  45. Ask my sister…

    How do we know he wasn’t talking on someone else’s phone, huh? He was pulled over by a police officer, so he must have been doing something wrong!

  46. NJ driver here. I note that most cops are using hand-held devices: either cell phones or police radios.

    Recall that this was a secondary offense, but now will be primary. They did the same thing with seat belt laws. To get a foot in the door, it is promised to be only a secondary offense.

    I suspect they next will try to ban tugjobs whilst driving. Most likely first getting one, but once they get a foot in the door, they will extend it to giving one.

  47. Ask my sister. Her husband was driving in the great state of New York when Smokey pulled him over for talking on his cell phone. He wasn’t, and protested, and Smokey told him to tell it to the judge. Apparently he did not know my sister very well. She gathered the receipts for that phone’s usage on that particular day and proved to the judge that it had not been used at that particular time. Case dismissed.

    And if he’d been using it on speaker-mode?

    By the way, how much time and expense(lost pay, etc.) did they have to spend in order to get the verdict they did?

  48. I wonder if a law enforcement officer can be cited for inputing license plate numbers via onboard computer?

    I was coming into town recently and noticed brake lights flashing at the top of the next hill. Cars were suddenly slowing, those behind them aborting lane switches, things were bunching up, and in general it looked like everyone was distracted.

    Turned out to be a sheriff’s patrol car doing the radar thing. Now that’s distracting.

  49. Hands-on versus Hands-free does not address the mental aspects that seem to distract a driver when conversing on a cell phone.

    Let me posit a theory.
    When you’re engaged in a conversation on the telephone, mentally you’re trying to imagine where the other person is, what they’re doing. In other words, you’re trying to place the person in some sort of context. That is distracting.
    Whereas if they’re right next to you, there are no such considerations. Proximity matters.
    Thoughts?

  50. Driving=all sorts of externalities.
    Joe’s point (despite desperate attempts to miss it) is completely valid.

    Let’s go through this again: “I can keep it between the lines” isn’t good enough. It’s the ability to make correct split-second decisions and to act on them that matters. I’m sorry if the fact that driving entails responsibility upsets some of you. Perhaps you should take the bus.

  51. How do we know he wasn’t talking on someone else’s phone

    The state did not prove their case. Dismissed. By the way, I have no real problem with phones in cars and their users getting killed in traffic, so long as they kill only themselves and the resulting rubber-necking delays don’t inconvenience me too much. I also think one should be allowed to play scrabble while driving. Shaving, tying your shoes, reading your mail, deep-frying some wings…you name it. Everything goes. ‘Cause when you’re in your car, you affect only yourself. Right?

  52. No, noting the quantitative difference between the two activities is not a rebuttal. The principle Episiarch is arguing for is, in his words, “How about if people get punished for things that actually happen, and not for possibilities?”

    Argue the principle if you think it’s so great, don’t cry “No fair!” because it looks bad when applied to a different situation.

    Kid Handsome,

    I get what you’re saying about assault, but the deer-hunting example goes to far in the opposite direction.

    How about, replace “into a crowd” with “randomly out my window?”

  53. Usually I’m on board with the car privacy thing, and standard libertarian disclaimer number whatever, but texting?

    I think the issue is that people doing this is at least partially the result of banning a less risky behavior.

  54. I’s only teasin, ed.

    Privitize the roads and let the owners decide who can and can’t drive on them and under what conditions, and insure themselves accordingly.

    There, I said it!

  55. So I can empty my clip at a crowd of people and only get in trouble if I hit one of them?

    Do you consider getting shot in self-defense to be “getting in trouble”?

    I’m not convinced that it’s the physical placement of the phone to the ear — and not the engagement of the conversation — that causes accidents involving cell phones.
    In that case, maybe we should ban all conversations in vehicles.

    Its really odd, but this has come up in conversation a few times, and I think most people would agree that it is more distracting to talk on a cell phone than talk to a person sitting next to you in the car.

  56. A hundred bucks?

    wtf? Somebody in Jersey (especially northern NJ) who has a blackberry won’t give a shit about a hundred dollr ticket, they’re making that in about an hour.

    What about a fine equal to half a percent of their yearly income? I think Sweden does that.

  57. Do you consider getting shot in self-defense to be “getting in trouble”?

    Do you understand that this is a discussion of the activity’s legal status?

  58. But by all means, drink!

  59. There’s a vast difference between attempted murder, willfully dangerous acts, and gross negligence on the one hand and possibly negligent acts on the other. joe’s analogy–with all due respect to joe (except when it comes to his use of italics tags)–is completely inapt.

  60. Conversations in vehicles probably don’t cause the same problem quite as frequently because both individuals can see when the surrounding environment requires more attention and they probably both unconsciously moderate conversation according to needs. If you’re the person on the phone talking to the driver, you have no idea what it’s like.

    There’s also the fact that I bet 95% of the time someone is on a cell phone in a car, both hands are NOT on the wheel. Another distinction.

  61. This also comes down to how irresponsible can you be when carrying out an activity that has the possibility of affecting other people fatally? “I didn’t MEAN to plow into the other car and kill those kids!” can be used to excuse all sorts of behavior, from drinking to driving while phoning to driving while dreadfully tired.

    The problem with waiting until the driver has already crashed up himself and someone else through his irresponsibility is that it’s too late. Being able to bring a lawsuit against someone else is cold comfort after your own kid is dead.

    I know that Libertarians think that everything should be left to the tort system, but most normal humans would prefer being able to expect a little more intelligent driving from the other people out on the roads.

  62. Pro Libertate,

    Isn’t the phrase “possibly negligent” repetetive? Doesn’t “negligent” already include the concept that it is possible that the action will cause harm?

    As for “willfully dangerous,” something that makes you less able to control a speeding automobile is both willful and dangerous – the difference between the two situations being a quantitative one, and not one that the principle I’m arguing against (“How about if people get punished for things that actually happen, and not for possibilities?”) does not encompass.

    Apt, sir. APT!

  63. By the way, the research shows no linkage between cell phone use and vehicle crashes.

    Huh? Did you even read what you linked to, David? That post talks about one study that couldn’t find a link. It also referenced 125 other studies that argued there was a causal relationship.

    As Tyler points out, while the authors’ results are intriguing, the jury is still out. The authors themselves concede that over 125 other studies argue a causal relationship between phone use and accidents

  64. I (gulp) agree with Joe here. If you want to argue from a philosphical standpoint, then you have to argue either it should be legal to both text-while-driving and fire a gun randomly out a window in a populated area or that it shouldn’t. In both cases you are being irresponsible and putting others’ lives and property at a relatively similar level of risk.

    If the degree of risk seems too dissimilar, vary the population density of the place where you’re doing the shooting until it seems equivalent. The argument stands.

  65. Clarification: You have to argue that it is within the proper roloe of the government to regulate both T-W-D’ing and shooting out a window randomly. Thus recognizing that judgement comes into play.

  66. And of course roloe = role

  67. Aptless, I say, aptless. If I shoot a gun at random where people are located, that’s an inherently dangerous activity. No question about it. In fact, it’s worse than just gross negligence, it’s more properly classified as a “depraved heart” murder (i.e., a murder that happens because the killer had a “callous disregard for human life”) if someone gets killed as a result.

    Cellphone use or any other possibly distracting activity is not even in the same ballpark. I don’t doubt that there are people who can drive safely while using a cellphone or doing something similar (if this were VM posting, he’d say “batin'”, but I’m not VM), so ticketing them just for the activity alone seems inappropriate. That is, the inherent risk of the activity is quite low (obviously this is true; otherwise, we’d have hundreds of thousands of dead cellphone users and/or their victims on our streets). I’d have less trouble with enhanced penalties for people who do such things and drive into trees, other cars, houses.

  68. Alright joe.

    The case of randomly firing out the window can be handled two ways. In the first case, one can imagine every conceivable stupid thing a person can do, and then we can write lots of laws saying that it is illegal to do all those stupid things. In the second case, we can say it is illegal to harm someone without just cause, then juries can decide if any given stupid act justifies throwing someone in jail.

    The difference is thousands of laws versus one law, where the one law is based upon the outcome of an individual’s actions not the specific actions themselves.

  69. “””So I can empty my clip at a crowd of people and only get in trouble if I hit one of them?”””

    “At”, is an important word here. Shooting at the crowd implies intent to hit the crowd. Just because you got lucky and missed every time would be irrelevant. I would expect that a judge would be unmoved when you try to convince him/her that you were not trying to hit what you were shooting at. You would be charged with a crime for actually hitting one.

    It’s really a silly scenario.

  70. If someone is weaving all over the road, endangering everyone around him, because he’s trying to drive while blindfolded, do we have to wait until he actually runs into something before we can make him stop?

    Personally, I would argue that “increasing the risk faced by others” is a sufficient imposition on others’ rights to (potentially) justify intervention, even under libertarian political philosophy. It’s not a question of principle (or at least not that principle), IMO, it’s a question of whether there is enough increase in risk to justify the costs of enforcement.

    In the realm of unsafe driving, ideally, it should be judged on a case-by-case basis: If someone is, as I said, weaving all over the road (or any other evidence of unsafe driving), they should be pulled over regardless of why they’re weaving. OTOH, if (to all outward appearance) they’re driving safely, then why should I care what else they’re doing?

    Ultimately, I want a market solution: In this day and age of converging databases and such, I want the ability to pick up my cell phone, punch in the license plate number of the idiot who just cut me off, and have it ring his cell phone so that I can yell at him.

  71. Let’s leave the gun firing analogy aside. The fact is that driving is an activity that inherently affects other people. Given that, laws that actually lessen that danger can be defended, even by a libertarian.

  72. If shooting randomly out of your window was truly similar, it would be legal unless there was a specific law against it. Why is it then that we need to change the laws to make driving while talking on a cell phone illegal, while shooting out of your window randomly seems to be covered by existing laws?

  73. Dave B: Firing a gun out your window is gross negligence involving an immediate threat to the lives of other people. Texting while driving is dangerous and obviously negligent, it does not present the same level of threat. In other words, the law establishes a lesser penalty (fines/points) to suit a lesser offense.

  74. The fact is that driving is an activity that inherently affects other people. Given that, laws that actually lessen that danger can be defended, even by a libertarian.

    Sure, and those laws can be reduced to:

    1-a) if you cause an accident, then you are finacially liable for all the property that is damaged by the accident

    1-b) if you cause an accident, then you are finacially liable for the injuries that are sustained by all parties affected by the accident

    2) if a jury finds you guilty of gross negligence you go to jail

    Anything more complicated that that is simply a public jobs initiative for laywers.

  75. Yes, carrick, but all of those things are ex post facto. There’s a long tradition, even within libertarianism, of tolerating laws that attempt to limit danger to third parties.

    Libertarianism =/= “leave everything up to tort law”

  76. Frankly, I wouldn’t want to live in a society that depended entirely on tort law.

  77. Chaos, there is no philosophical difference between banning internet gambling because some stupid prick will get addicted and banning texting during driving because some stupid prick will cause an accident.

    The goal should be to punish bad behavior so that people will choose intelligently how to behave rather than criminalizing high risk behavior.

  78. Frankly, I wouldn’t want to live in a society that depended entirely on tort law.

    2) if a jury finds you guilty of gross negligence you go to jail

    In my “libertarian” world, a drunk driver who kills someone get convicted of a random pre-mediated act of viloence and does hard time. The dope head down the street smokes in peace, and the state doesn’t waste party of my wealth to stop him from smoking dope.

  79. Do you understand that this is a discussion of the activity’s legal status?

    Sure. Do you understand that engaging in activities that are insanely risky tend to be, for lack of a better term, “self-policing”.

    More substantively, shootin at people is generally considered attempted murder. I personally have no problem with “attempt” crimes. I personally don’t regard driving while talking to be “attempted reckless driving.”

  80. there is no philosophical difference between banning internet gambling because some stupid prick will get addicted and banning texting during driving because some stupid prick will cause an accident.

    Sure there is: The gambling addict is endangering only his own assets. An unsafe driver is endangering the assets of all the other people/property owners around him.

  81. Salvius already said it best.

  82. Sure there is: The gambling addict is endangering only his own assets. An unsafe driver is endangering the assets of all the other people/property owners around him.

    You simply looking at different consequences of bad behavior and using that to justify different laws.

    The real quesstion is and always will be whether or not to criminalize behavior that has some non-zero probability that someone will suffer harm versus punishing people after they have caused harm. In other words, should everyone be banned from risky behavior, or should guilty people be punished?

  83. R C Dean: Can one drive recklessly without causing an actual accident?

    If so, can we make reckless driving a crime, even in those cases where no actual accident occurs?

    If so, then if research demonstrates that driving while talking is per se “reckless”, in terms of how badly it affects your ability to drive, then could driving while talking be considered a crime?

    Every time something like this comes up, news media dutifully mention the study (studies?) that claims to show that talking on a cell phone impairs driving ability to the same degree as being legally drunk (0.08 BAC). I tend to think this should be considered evidence of how minor an impairment it is to be just barely legally drunk, rather than evidence of how major an impairment it is to talk on the phone, but other people have different opinions.

    My point is: Those who want to outlaw talking while driving don’t regard it as “attempted reckless driving” either, they consider it actual reckless driving. Just like driving drunk.

  84. Certain handicaps are greater impairments to driving than cellphone use and minimal drinking. Discuss amongst yourselves.

  85. The real quesstion is and always will be whether or not to criminalize behavior that has some non-zero probability that someone will suffer harm versus punishing people after they have caused harm.

    First of all, your phrase “different consequences of bad behavior” glosses over the distinction I was making: Whether the consequences affect anyone who didn’t consent to them (i.e., anyone other than the person engaging in the behavior). That’s a philosophical difference, whether you recognize it or not.

    Beyond that, I take it you would advocate legalizing attempted murder? If I try to shoot someone in the head for looking at me funny, but I am a lousy shot and I miss, I have caused no harm to anyone, right? What I did had a non-zero probability of someone suffering harm, but since no one actually did, it’s presumably OK.

  86. Of course we’re not going to outlaw any behavior with a non-zero risk to third parties. It does, however, make sense to prohibit behaviors with a significant probability of causing harm. Legal penalties, of course, should be scaled to the gravity of the danger. In other words, texting while driving might merit a $100 fine, while emptying a clip out your window merits a significant amount of time in jail.

    Of course, people can differ about what constitutes a significant threat, but I don’t think that proposing that all legal action be post hoc makes much sense.

  87. Okay guys, if you’re going to say something like:

    By the way, the research shows no linkage between cell phone use and vehicle crashes.

    Then your own post that you link to says this:

    As Tyler points out, while the authors’ results are intriguing, the jury is still out. The authors themselves concede that over 125 other studies argue a causal relationship between phone use and accidents, so don’t expect the repudiation of these ridiculous laws any time soon.

    You also fail to note that the “research” you’re linking to is merely a very loose correlation between an increase in weekday minutes and accident rates.

    So if you just are against these laws that’s fine, but don’t twist the data to make it seem like preventing people from talking/texting on cell phones wouldn’t cause wrecks.

  88. Beyond that, I take it you would advocate legalizing attempted murder?

    Let’s see:

    Texting while driving; accident possible but not probable (i.e. probability far below 50/50); risky behavior to oneself (with consent) and to others (without consent)

    Attempted murder; intent certain; outcome dependendent on competence; potential victim does not provide consent

    Sure those look exactly the same to me. Gimme a break.

  89. (And no, pointing out the quantitative difference between the danger posed by the two activities does not refute the point that it is foohardy to legalize the endangerment of others.)

    The quantitative difference makes all the difference in the world. Almost everything we do outside our homes endangers others. Getting in your car (even without a cellphone, food, screaming kids, etc.) endangers potentially thousands of pedestrians and bikers every time you pull out of the dirveway. You can magnify that basic risk many times if you’re driving after dark. And, several times more if it happens to be on a narrow street downtown as office buildings are emptying. Of course the list of risky things you do that endanger other’s lives is endless and the only distinguishing factor is precisely the quantitative level of risk you say is irrelevant to the point being made.

  90. Of course, people can differ about what constitutes a significant threat, but I don’t think that proposing that all legal action be post hoc makes much sense.

    Over the course of the last 3 decades or so we have seen enforcement against drunken driving go from basically tolerating DUI so long as no one gets hurt; to focussing on getting serverely drunken people (high blood alcohol) off the road; to focussing on getting all people under the influence (mostly functional but slightly impaired) to not drive; to stopping anyone from drinking any amount and then driving (zero tolerance).

    And by the way, we now have a legal framework that allows roadblocks to check people for DUI without probable cause.

    So on the one hand you have a very nice bright line legal concept (harm versus no harm) and on the other a constantly wavering fuzzy line that is driven by a politcal ambitions of a subset of the population.

    I choose the bright line framework. Your mileage may vary.

  91. Wow! We actually have a valid argument running through this thread. But one other point is overlooked: is banning risky behavior such as talking/texting on the phone actually worth the enforcement costs? If police are busy stopping drivers for phone use, they have less time for taking care of other, real crimes. And will enforcement of such a law actually reduce the risky behavior, or will it have unintended consequences that increase risks in other areas?
    These practical considerations tell us that banning an activity doesn’t necessarily solve the problem. And while I can understand people wanting something to be done proactively, there’s nothing that says other, non-legal actions aren’t possible and more effective than legal prohibition. The ever-(un)popular insurance angle, for example, or even just public awareness and peer pressure. Just because a ready-made market solution isn’t obvious doesn’t mean that it doesn’t exist.

  92. Attempted murder; intent certain; outcome dependendent on competence; potential victim does not provide consent

    The outcome of reckless driving is also “dependent on competence”, and the “potential victim does not provide consent” in either case. If the difference is intent, wouldn’t that make it a thought crime? You’re talking about punishing someone for what they wanted to do, not for what they actually did.

    Texting while driving; accident possible but not probable (i.e. probability far below 50/50); risky behavior to oneself (with consent) and to others (without consent)

    You’ve inadvertantly supported my point, by specifying “probability far below 50/50” as a way of distinguishing attempted murder from texting-while-driving. That point being that this is not primarily a philosophical difference, but merely a difference of opinion about (A) where on the 0% to 100% scale of risk texting-while-driving falls (a factual question), and (B) where on the 0% to 100% scale of risk to draw the line (a pragmatic question). If that’s not what’s at issue, then the fact that the one activity’s probability is “far below 50/50” is irrelevant. It could be 98%, as long as the person doing it falls into that lucky 2% that causes no harm.

    Do I think there should be a specific law against texting-while-driving? Heck, no. Do I think there should be a generic law against driving recklessly? Yes, as long as we’re stuck with public roads.

    Michael Clem:

    The ever-(un)popular insurance angle, for example, or even just public awareness and peer pressure.

    As I said, I want to be able to punch someone’s license plate number into my cell phone, and have it ring their cell phone so I can yell at them.

    My other proposal: Paintball guns. We should be allowed to fire a paintball at anyone who annoys us on the road. That way, when you see someone with dozens of paint splotches all over their car, you know to give them plenty of room.

  93. I have a car, but I wish I didn’t need to. Can I still live?

    you will lose three fingers on your right hand.

    also you will be forced to listen to “nerdcore” for no less than three minutes a day and no more than seven.

    anyway, it’s pretty obvious that the greatest danger with driving is that people are controlling the automobile.

    also i wonder how distracting pulling a drive-by would be if you had one of those bluetooth headsets?

  94. Sure those look exactly the same to me. Gimme a break.

    If you can pretend not to see any difference between gambling and reckless driving, then I can pretend not to see any difference between reckless driving and attempted murder. 🙂

    Hey, you know what that means?

    Gambling = Reckless Driving
    Reckless Driving = Attempted Murder
    therefore
    Gambling = Attempted Murder!

  95. Salvius, I am not going to spend any more time discussing this with you. I’ve seen too many people try to refute libertarian concepts with statements like “so you want to legalize attempted murder”.

    If you cannot differentiate between:

    Punish harm resulting from risky behavior after the fact rather that prohibit all people from engaging in risky behavior

    versus:

    Legalize an intentional, but failed, attempt at direct physical harm against another individual simply because no harm actually occured

    then:

    There isn’t much point in conversing with you any more.

  96. Different nannies have differing priorities, but they all want to prevent other people from doing risky things because someone might get hurt.

  97. Punish harm resulting from risky behavior

    I simply think there is a good argument that imposing additional risk on others is itself harm.

    If I impose risk on someone else, then in order for that person to mitigate that risk (i.e., to restore themselves to where they were before I increased their risks), they must pay an actual cost (e.g., insurance, barriers, etc). I have, therefore, harmed them.

    From a risk analysis point of view, I’ve harmed them by the cost of the potential damage, discounted by the probability that the damage will not actually occur. This is true even if the risk never materializes into actual damage.

    I have absolutely no problem with the “harm versus no harm” standard. We differ on how inclusive a definition of “harm” to use.

    And I self-identify as libertarian. I’ve read, and agree with, Friedman and Mises and Rothbard, etc. I’m not trying to refute libertarian concepts. I’m trying to refute your concepts. And perhaps I could also say:
    If you cannot differentiate between:

    Risky behavior that risks only the person engaging in the behavior

    versus:

    Risky behavior that risks the person engaging in the behavior and everyone else around them

    then:

    There isn’t much point in conversing with you any more.

  98. And I self-identify as libertarian.

    That’s good, I was afraid you were just Dan T in a left over holloween mask.

  99. I’m on a bit of a statistics tear today, so please forgive but, has anyone studied the rate of automobile accidents, taking into account the number of trips, and compared them to the rate after cell phones became widely available? Oh wait, maybe I can perform this feat. Let’s see.

    Let’s start with 1999:

    # of deaths: 40,965
    Population: 279,040,181
    Crude rate: 14.68
    Age adjusted rate: 14.66

    Year 2004:
    # deaths: 43,432
    Population: 293,638,158
    Crude rate: 14.79
    Age adjusted: 14.66

    Hmm, looks like a slight uptick in the crude rate of motor vehicle deaths since 1999, where text messaging has arguably become much more prevalent.

    Well, I guess the ban is a good thing, then. I expect to see dramatic drops after the imposition of said ban.

  100. Pro Lib, you’re missing the point.

    Look at Episiarch’s principle; do you see anything about people’s feelings, motives, or hearts in there?

    Once you set that aside, all you are aguing is that the degree of risk is higher – and I agree with you, the degree of risk militates for treating the situations differently. That’s the variable we need to consider, not whether a bullet or car has hit somebody yet.

  101. carrick,

    The goal should be to punish bad behavior so that people will choose intelligently how to behave rather than criminalizing high risk behavior.

    Shooting out my window IS bad behavior that should be punished so people will choose to intelligently how to behave, whether I’ve hit somebody yet or not.

  102. In other words, should everyone be banned from risky behavior, or should guilty people be punished?

    The guy who accepts the dare to drive five blocks blindfolded and gets lucky had committed exactly the same act as the guy who does so and kills somebody. They made exactly the same decision, undertook exactly the same act, and put other people in exactly the same danger. The only difference is pure luck, which should be of no consequence whatsoever when considering the morality of the drivers.

  103. Brian Courts:

    Almost everything we do outside our homes endangers others.

    Thanks for making this point, btw. It was sort of a sidetrack from the points I was arguing, but it needed to be said. Heck, stuff we do inside our homes endangers others – I could flip on a light switch, an electrical short could start a fire, and the fire could spread to my neighbor’s house. Of course the quantitative level of risk is relevant.

    Michael Clem:

    is banning risky behavior such as talking/texting on the phone actually worth the enforcement costs?

    My answer: No. Especially keeping in mind that the costs of enforcement include loss of liberty, such as the ones carrick mentioned at 3:52 in the context of DUI laws.

    However, banning risky behavior like being obviously on the verge of losing control of your car, for whatever reason (drinking, texting, waffle-making, etc)? That’s another story…

  104. Wouldn’t the elimination of such laws, and the use of endangerment laws in their place, involve empowering the police to use their own discretion a lot more?

    Is this one of those “torts should replace regulation,” “we neet ‘tort reform'” type of situations?

  105. Joe:
    Yes. I think police should be empowered to use more and more of their own discretion, over smaller and smaller realms of wrongdoing. 🙂

    Oh, and “discretion” does not extend to violating anyone’s rights, for any reason. Obviously (I would hope).

  106. There’s a great deal to be said for that argument, Salvius, even from a libertarian perspective.

    For example, there’s the elimination of the zero-tolerance phenomenon.

  107. “Freedom” does not mean you have the right to impose your risk-taking on others.

    As long as enough people who vote in a community decide they’d prefer to have legislation getting the cell-phone texter off the road, why in the heck do Libertarians feel the cell-phone texter shouldn’t have to obey those rules? If the cell-phone texter feels that strongly that his/her right to talk on a cell phone while driving is infringed, there are two actions which can be taken:

    1) convince enough voters in the community to allow cell-phone texting while driving, or:

    2) create his/her own private road between the locations he/she wants to go.

    There IS no rule that says “all stupid behavior can only be dealt with by torts after the fact.” If a community decides it wants to put in other nanny mechanisms by banning what it considers risky behavior, what’s the fuss?

    Libertarians talk a lot about “leaving decisions up to the local community” but certainly yowl to high heaven when the locals don’t vote the way Libertarians think they should.

  108. The urge to ban risky behavior comes from the same place in the human pysche regardless of who suffers the consequences of the risky behavior. Calls to ban self-destructive behavior, such as online gambling, frequently justify those bans based on the collateral damage caused by addiction, not just the harm to the individual that engages in the risky behavior. So, I see no meaningful difference in the calls to ban online gambling and the calls to ban texting while driving.

    The guy who accepts the dare to drive five blocks blindfolded and gets lucky had committed exactly the same act as the guy who does so and kills somebody.

    I disagree.

    The only difference is pure luck, which should be of no consequence whatsoever when considering the morality of the drivers.

    Morality isn’t the issue, punishment is the issue. The guy that kills someone goes to jail for life without parole in my opinion for he is far worse than the man that kills his wife in a fit of rage over an affair.

    If everyone knows that life in prison is the punishment for killing someone when driving blind on a dare, far fewer people will accept the dare. Those that do are psychopaths that will do harm regardless. Dealing with psychopaths before or after they commit a crime is a topic for another day.

  109. Shooting out my window IS bad behavior that should be punished so people will choose to intelligently how to behave, whether I’ve hit somebody yet or not.

    And a jury should convict you for endangerment. A separate law saying “thou shall not shoot out of your window” is not necessary.

    The guy who accepts the dare to drive five blocks blindfolded and gets lucky had committed exactly the same act as the guy who does so and kills somebody.

    What is it with you and Salvius anyway.

    The topic of discussion is “should a special law be enacted to ban texting while driving” because it increases the marginal probability that you will have an accident.

    You discuss shooting out a window and driving blindfolded as some equivalent type of infraction. And Salvius thinks that I want to legalize attempted murder.

    My position is straightforward.

    One law should be used instead of many. This law should state that you will be held responsible for stupid behavior. Separate juries may be empowered to determine if your stupid behavior results in civil liability for harm caused or if it amounts to a criminal infraction.

    The law can and does distinguish between risky behavior that increases the marginal probability that you might hurt someone “by accident” and clearly criminal intent to do harm. Intent to do harm is now and always should be banned.

    And before Salvius gets going again, texting while driving is not intent to do harm.

  110. Morality isn’t the issue, punishment is the issue.

    Actually, what you said before was “The goal should be to punish bad behavior so that people will choose intelligently how to behave rather than criminalizing high risk behavior,” which incorporated both morality and punishment. In fact, it was a clear statement that punishment should be brought to bear in the service of dissuading people from a certain species of immoral behavior – the endangerment of others.

    If everyone knows that life in prison is the punishment for killing someone when driving blind on a dare, far fewer people will accept the dare. True. And if everyone knows that 3 years in the clink is the punishment for driving blind on a dare, even fewer people will accept the dare. And let’s face it, nobody accepts that dare expecting to kill somebody, so it’s the latter case where the effect will be more pronounced.

    The topic of discussion is “should a special law be enacted to ban texting while driving” because it increases the marginal probability that you will have an accident. Well, no, Episiarch made a statement about whether there should be any punishment for people who endanger others but haven’t caused harm, and some of us went off on that tangent.

  111. Well, no, Episiarch made a statement about whether there should be any punishment for people who endanger others but haven’t caused harm, and some of us went off on that tangent.

    Returning to the tape:

    Episiarch Said: How about if people get punished for things that actually happen, and not for possibilities? That would be nice

    joe replied: So I can empty my clip at a crowd of people and only get in trouble if I hit one of them?

    So I believe you are the one that escalated the scope of the discussion out into la la land.

    But let’s follow through anyway:

    First and foremost — No Victim, No Crime

    Risky behavior that has some marginal increase in the probability of an accident is not endangerment

    Dangerous behavior with blatant disregard for public safety associated with a high probability of harm to someone else may be criminal even without a victim

    However I argue that this dangerous behavior can be suppressed better by an adequate level of punishment for those cases that actually do have victims

  112. Risky behavior that has some marginal increase in the probability of an accident is not endangerment

    What, precisely, would you call it, then? It may be negligible endangerment, but that’s not the same as saying it is not endangerment.

    Earlier, you said:

    The real quesstion is and always will be whether or not to criminalize behavior that has some non-zero probability that someone will suffer harm versus punishing people after they have caused harm.

    I can’t find any way to reconcile that with:

    Dangerous behavior with blatant disregard for public safety associated with a high probability of harm to someone else may be criminal even without a victim

    My entire line of argument here has been that the distinction you’re trying to make, between “harm versus no harm”, is not the bright line you make it out to be. You’ve just admitted that a “high probability of harm…may be criminal even without a victim”, which is what I’ve been saying all along, so it really does just come down to where along the 0%-to-100% scale we decide to draw the line (and the factual question of where along that scale texting-while-driving actually lies).

    And I’m forced to agree with joe: I’ve been talking about “whether there should be any punishment for people who endanger others but haven’t caused harm”. I’ve tried to make clear several times that I would oppose a “special law… to ban texting while driving”, just like you, because I think this is better dealt with by a more generic law against “dangerous behavior with blatant disregard for public safety”. Talking on a cell phone while driving doesn’t (usually) rise to this level. Texting while driving might rise to this level, in some specific instances, depending on the level of distraction, the individual’s skill in both driving and texting, etc.

  113. carrick,

    The tape shows exactly what I said it does – Episiarch making beginning the discussion of the “no one killed, yet” argument.

    As for the rest of your post, you make two points. First, you distinguish between “some marginal increase in risk” vs. “a high probability of harm.” I understand this distinction – it’s actually the one I was arguing for against Episiarch’s position. I brought up the gunfire example to demonstrate exactly that point.

    Now, about the efficacy of only punishing when people get killed – I invite you to think back to your teenaged years. Young adults do a lot of stupid things, and they do them for the specific reason that they don’t think they will kill themselves or others. They drag race down the street, they climb up on buildings, some of them rob stores and take PCP. That’s why I don’t think punishing dangerous behavior only when someone loses an eye is going to have much of a deterrent effect.

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