17. Who is Responsible for Traffic Deaths

Let us posit, if only for argument’s sake,¹ that the cause of road fatalities is governmental mismanagement, and not the usual litany of explanations (e.g., speeding, drunk driving, vehicle malfunction, driver error, bad weather, etc.) Some 40,000 people lose their lives each year on U.S. highways.² Is the government, under these assumptions, responsible for them all? One criticism of this thesis is that bureaucratic management is not at all so responsible, for if the state were not in charge of managing vehicular transportation arteries, then private enterprise would do so. In this case, we would have to subtract the number of fatalities under these alternative institutional arrangements from present statistics. Then, central planning would be liable for either fewer deaths, if under market conditions fewer people would die, or, perhaps, none at all if more fatalities occurred under these conditions. For example, if under laissez-faire capitalism for roads, say, 50,000 would perish; then, far from the government being liable for any deaths at all, it would be credited for saving 10,000 per year. Alternatively, suppose that with private property highway firms managing this resource, only 15,000 would lose their lives. Then, by subtracting this amount from the extant figure (40,000 – 15,000 = 25,000) we deduce that government was responsible for killing only 25,000, not 40,000 people.

Let us now attempt to analyze this situation and lay blame for highway fatalities where it belongs. We do the blaming, not for the sake of blaming, but, rather, in an attempt to ameliorate conditions. We can scarcely achieve improvement if we are not clear as to the cause of this calamity of roadside deaths.

So, is it likely that private enterprise would be run more efficiently in this regard than the public sector and thus kill fewer people? It is difficult to definitively arrive at any such conclusion, since what we are involved in is a contrary-to-fact conditional: at present, government owns and manages the roads. But if this were not so, and if, instead of the status quo, somehow entrepreneurs were to take over these reins, then what would be the highway death toll? To appreciate the difficulty of any such extrapolation, imagine the scenario wherein wristwatches were always manufactured by government, and now the private sector was about to take over. The questions would come thick and fast, with no obvious answer: how many companies would go into this business? What would their profits be? Where would they locate? Would wrist bands be made of leather or metal, and would these two industries be vertically integrated or not (e.g., would one firm manufacture the former, and another the latter, or would both come under the auspices of only one company)? What proportion of watches would feature Mickey Mouse, be waterproof, or feature stopwatches? Would these timepieces be sold outright, or be given as gifts to people who opened bank accounts? The reason these questions cannot be answered beforehand is because they are essentially entrepreneurial issues, not economic ones. The answers can only emerge in a market, and cannot be predicted by non-market participants, such as economists.

Despite the foregoing considerations, however, even if no exact answers can be gainsaid, it might be possible to pierce the fog to some small degree and attain some measure of information, some ballpark estimates.

For one thing, it is exceedingly probable that roads markets will outperform bureaucrats; they do so, after all, in every area of endeavor for which there are comparable statistics.³ In fact, there is even a “two to one” rule that emanates from this literature:⁴ for every dollar spent by private enterprise to shift a ton of garbage, pave a given distance of road, or offer a given amount of fire protection, doing such a job through the public sector will cost two dollars. If we can extrapolate from this phenomena to highway fatalities, and translate directly from cost savings into lives saved, then, employing the “two to one” rule we arrive at the result that under private control, deaths will be cut in half, from 40,000 to 20,000.

What is the evidence for this “two to one” claim? Khursheed and erding⁵ state:

Scottsdale (Arizona) saves forty-seven percent in costs by contracting out for fire protection services. In other words, if Scottsdale had chosen to have the public sector provide its fire protection, production costs would have close to doubled.⁶

Is there any reason to believe that private/public advantages would be even more pronounced in street and highway management than in the more pedestrian goods and services such as running a bus line or delivering the mail? There is, there is. The former is tremendously more complicated than the latter. It is sometimes said “X is too complicated to be left to the marketplace.” In point of fact, the very opposite is the case. If there is a simple function, such as, perhaps, running a lemonade stand, something that any halfway competent seven year old child could accomplish, then, maybe, the state apparatus could acquit itself not too badly in the provision of this beverage.⁷ In other words, if nationalize or municipalize we must for a given number of items, then it would undoubtedly be best to give over to the bureaucrats such simple and unimportant items such as lemonade, rubber bands, paper clips and their ilk, reserving more important and complex provision such as highways to the always more efficient private sector. To return to our attempts to calculate the relative efficiency of public and private enterprise, if there is a two to one rule that operates regarding easy to supply products and services, then, perhaps, this rule might be amended to a three to one rule for difficult goods, such as surface transportation. If so, then, according to our calculations, highway fatalities would be cut to a third of their present level, and we would move from 40,000 to 13,334.⁸

We can, however, go even further than that in this direction, far further. Bennett and DiLorenzo (1983) report that, insofar as weather forecasting is concerned, the private sector costs are only some 28 percent of what federal government forecasters do. If we can extrapolate from this (roughly) four to one bit of empirical evidence in a very different field of endeavor to road fatalities, deaths can be cut from a horrendous 40,000 to a “mere” 10,000.

But this is not at all the way that White sees matters. He states:

Block . . . attempts . . . to pin . . . the blame for all highway fatalities on the government. The argument . . . consists of two related parts: 1) all highway deaths can be causally attributed to government management; (2) the government is morally responsible for these deaths. . . .

Would the highway fatality rate be zero under a system of private ownership of the roads? There is good economic reason to suspect not. . . . It is not presently zero in private amusement parks, or in private road racing, or in private air travel. If we cannot then attribute all highway deaths to governmental administration of the highways, how many can we so attribute? I find it impossible to say, for it is impossible to know a priori what the death rate would be under private ownership and management. It does not seem so implausible to me to suppose that it might be even higher than the present rate.⁹

Let us first focus on attribution. Let us posit the claim that governments have murdered some 173 million of their own citizens in the last century, and that, specifically, the partial breakdown was as follows: Mao, 60 million; Stalin 20 million; Hitler, 11 million; Pol Pot, 2 million. Assume, arguendo, all of these figures¹⁰ to be true. Following White’s logic, we would not be able to make any such attribution. Why? Because all such figures ignore contrary-to-fact conditionals. To wit, had these governments not gone on their various murderous rampages, some of these people, assuredly, would have died in any case. Some would have perished, merely, of old age. Others would have died from diseases completely unrelated to statist mismanagement, and therefore could not be fairly attributed to their socialized medicine nostrums, for example.

White’s, in other words, is an improper use of the concept of “attribution.” In my view, there is no need at all to refer to such contrary-to-fact conditionals. If Hitler, for example, murdered 11 million people, then, by gum and by golly, he killed 11 million people. The fact that, say, one million of them would have died in the half decade it took the Nazi regime to accomplish this slaughter is completely beside the point. They obliterated 11 million, dagnabit, not 10 million.

But we do not need to resort to mass murderers of a gargantuan scale to make the point that White misconstrues what it is to “attribute” responsibility for an act to someone. It applies to moderate mass murderers as well. Janet Reno took responsibility for the unjustified killing of some 86 innocents including women and children at Waco,¹¹ as did Tim McVeigh for 168 people, also including women and children, at the Murrah Federal Building in Oklahoma City.¹² Perhaps—likely, even—some of these would have otherwise died of natural causes, had these nefarious deeds not taken place. Yet, we still “attribute” all 86 to Reno, and all 168 to McVeigh, this alternative possibility notwithstanding. Hence, there is no need at all to determine the contrary-to-fact conditional of how many people would have perished on the nation’s roads were they privatized, and to subtract this number from the 40,000 or so who are butchered under governmental management.

The highway fatality rate need not at all be zero under a system of private ownership to entitle us to attribute to government all the fatalities currently occurring under public sector auspices. Very much to the contrary, just as we attribute to murderers all the deaths they cause, we must do the very same thing for governmental road managers.

Let us now consider the analysis presented above at the outset of this chapter. According to it, if road deaths are 40,000 under the aegis of the state, and would have been 15,000 with markets providing roads, then we attribute only 40,000 – 15,000 = 25,000 fatalities to the present management. Nonsense. We hold these bureaucrats responsible for the entire amount of misery they have caused.

However, it cannot be denied that it is an interesting, nay, a fascinating question, to ask how the number of highway deaths might change with a move to privatization. White makes much of the fact that

many drivers would choose to patronize roads without low fatality rates but with other desirable features, such as no speed limit. There may currently be too few deaths on the highways, in the sense that consumers in a free market would demonstrate a preference for higher speeds over fewer deaths.¹³

I regard this as a wildly unreasonable speculation. No, it cannot be ruled out of court on logical grounds alone. It involves no inner self-contradiction. But it is so radically out of step with all of our empirical knowledge of how the world works. Why is the White scenario so unrealistic?

First of all, it is not clear that travel speed per se, always and at all levels, is causally related to deaths. Obviously, ceteris paribus, the faster a vehicle moves, the more likely it is to come to no good end. However, going fast, even ninety miles per hour on a clear day on a straightaway with no other vehicles within sight is undoubtedly less dangerous than weaving in and out of heavy traffic at sixty miles per hour in a thoroughfare designed for travel at thirty-five miles per hour.

Second, under free enterprise, typically, but rarely if ever under the careful supervision of the nanny state, it is possible to have your cake and eat it too. In this case, it is to attain both speed and safety. It does not much strain the imagination to suppose that under a free society, there might be some road owners who would adopt a “fast but safe” policy. For example, they might place a minimum speed requirement on their customers of, say, ninety miles per hour,¹⁴ charge more for this privilege, but keep large distances between cars. As long as the elasticity of speed with regard to price were positive, this could be a profitable entrepreneurial decision. That is, people would pay sufficiently more for being able to go fast to more than offset the road owner for loss of additional consumers.

So “speed” is really not the answer. We can have quicker transportation,¹⁵ and greater safety, both. White¹⁶ takes me to task for my insufficient defense of “daredevils and high-speed freaks . . . who prefer to travel deadlier highways.” It cannot be doubted that there are some such people. Who has not seen wild-eyed young kids drag racing on our city streets amidst normal traffic? Perhaps the best example of this barbarous behavior is Rodney King, arrested for speeding at near one hundred miles per hour through city streets.¹⁷ In White’s interpretation, private enterprise would cater to such individuals, instead of outlawing them as at present, and thus deaths would rise as we moved from public to private provision.

Nonsense on stilts. I have no doubt that the marketplace would accommodate such tastes. It does so for a plethora of weird desires;¹⁸ why not this one too? Where there is money to be made, there will be an entrepreneur arising to provide the supply. However, I draw the opposite conclusion from White regarding the implications of all this for highway fatalities. In my reasoning, people with outré tastes tend to be segregated by market forces.¹⁹ Rich live with rich, poor with poor, hippies with hippies, fundamentalists with fundamentalists. Voluntary residential patterns emerge, too, with regard to race and national origin and ethnicity,²⁰ sexual preference,²¹ even age.²² Why should matters be any different as far as “daredevils and high-speed freaks”²³ are concerned?

But if this is so, then such denizens would tend to congregate together with one another. Then, to be blunt about this, they would then kill each other in a voluntary manner, and stop doing so to the rest of us. Such roads would constitute a sort of “Murder Park”²⁴ on wheels. The private “freak roads” could be offered chicken races, where two cars race toward each other at breakneck speeds, and the one who swerves away from the other at the last minute loses, and is denigrated as “chicken,” a fate worse than death for these worthies. They could try to establish land speed records in crowded conditions, in sharp contrast to those who attempt to do so in places like the Salt Flats of Utah under relatively safe conditions.²⁵ Drag races might even become rather pedestrian. Who says that everyone should stay to the right, or even left, while driving. Surely, this is far too restrictive for the “free spirits” we are now describing. All of these rules, for that matter, are merely bourgeois prejudices.

Yes, the death rate of this small tiny ilk might well sky-rocket,²⁶ but that would reduce the overall death rate from vehicle fatalities, as they killed each other off, and left alone the general public which suffered all too long from their depredations. So White’s assessment that road owners might well cater to dangerous drivers tells against his very own thesis that this implies more overall traffic fatalities. Says White: “The speedy driver has a right to endanger himself and others by speeding so long as the road owner and they consent. And consent they do, if they enter a clearly-marked no-speed-limit highway.”²⁷ Yes, dangerous (not merely “speedy”) drivers are a menace to all other motorists. But if they voluntarily slaughter one another, this will make it less likely they will pulverize us, not more likely. I stand by my contention that private entrepreneurs will “generally find it profitable . . . to virtually eliminate highway deaths.” Yes, a few weirdos will perish under free enterprise, and bad cess to them.

White now moves on to a different issue:

Is government . . . criminally responsible for these deaths? The answer to this question hinges on whether we consider individuals to be coerced into driving on dangerous highways. In a sense they are not, if voluntarily entering a government highway ipso facto constitutes a waiver of liability claim against accidental fatality. In a sense they are, if government has legally prohibited potential highway entrepreneurs from offering alternative roads.²⁸

Again, White takes on the role of apologist for governmental depredations. Of course the apparatus of the state “has legally prohibited potential highway entrepreneurs from offering alternative roads.”²⁹ The road socialists could scarcely maintain their monopoly over this vital command post of the economy were this not true. This being the case, it is exceedingly difficult to see how motorists can be considered to be “voluntarily entering a government highway.” Nor is it possible to see how an act taken under duress can “constitute a waiver of liability claim against accidental fatality.”

Here is the scenario. First, the government banishes, by legislative fiat, all chance at relatively safe private roads, leaving as the only alternative governmental, hell-hole highways. Then, given that it would be impossible for masses of people to travel on nongovernment road and street options such as helicopters, motorists venture out onto these booby trapped traffic arteries and are slaughtered like flies. Along comes White who asserts that, since the put upon public “voluntarily enter[ed] a government highway, [this] ipso facto constitutes a waiver of liability claim against accidental fatality.” Using “logic” of this sort, we can conclude that if a gunman forces a victim to jump to his death off the roof of a skyscraper by threatening to shoot him if he does not, the latter “voluntarily” plunged to the concrete below. No. When government precludes private highways by threatening violence against all those who would provide these services, and as a result the people have little or no alternative but to patronize these death traps, we may not at all conclude that their entrance onto the public streets and highways was a “voluntary” one. Very much to the contrary, when you eliminate a safe alternative, “allowing” people to venture out onto a very much more dangerous one, you are forcing them to make this choice under duress. So, yes, the government is very much criminally responsible for the deaths they cause, all of them, not just those subtracted by the number who would perish on private roads, White to the contrary notwithstanding.

As I write this, I read an editorial in the local paper, The Times-Picayune entitled “111 is greater than 53.”³⁰ According to the editorialist, in the two years prior to the repeal of the mandatory helmet law for motorcyclists in Louisiana, there were 53 fatalities for drivers of this vehicle, while the comparable figure for a similar time period afterward was 111. Yes, but every one of those 53 was what we can characterize as a coercive death: drivers were laboring under a coercive law. Similarly, every one of those 111 was what we can characterize as a “voluntary” death: drivers were free to assume these risks or not. (Helmet wearing is not illegal when it is not mandated.) A similar point may be made in comparing road fatalities under public and private aegis.

This author further beclouds the real issues when he says:

It is an important libertarian principle that we judge government by the same standards we apply to ordinary criminals. The question is: does liability fall on the landowner for an accident involving two other parties on his premises?³¹

White is absolutely correct when he calls for equal treatment of public and private or “ordinary” criminals.³² But there are none of the latter in the present scenario; here, there are only the government criminals who prevent private entrepreneurs from setting up road and highway businesses, and the contrary-to-fact conditional, selfsame private entrepreneurs who would set up road and highway businesses were they only allowed to do so by law. So the question: “does liability fall on the landowner for an accident involving two other parties on his premises?” must be answered for only these two, government criminals³³ and private entrepreneurs, not any “ordinary criminals.”

The first issue has already been answered: yes, the road socialists cause some 40,000 highway fatalities, and they are morally, and should be legally, responsible for all of them. Suppose now a system of private highways on which, say, five thousand people die annually. Should the private road owners be legally responsible for any of them? It all depends upon the contract in operation between these entrepreneurs and their customers. If nothing at all is specified, we must resort to implicit contracts, a dangerous legal arena. But, while we cannot fully and confidently predict the operation of a now nonexistent highway industry, it seems altogether likely that the private road owners would insist upon contracts not holding themselves liable for whatever few fatalities still occurred in this venue. That being the case, White’s question can be answered definitively: in the free society, no street owner would be liable for any traffic deaths that occurred on his premises.

This, of course, is not to deny that present day courts would have none of this. Given our litigious society, there is no doubt that private road owners would be subjected to all sorts of law suits by those who had been hurt in traffic accidents.³⁴ It is unlikely in the extreme that judges of this ilk would allow such contracts. Most probably, they would be rendered null and void for being against “the public interest,” or “public policy.” But we are now discussing law in the free society, not in its present fever swamp. Under libertarian law, contracts between “consenting capitalists”³⁵ would not be set aside in so cavalier a manner.

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¹Many of the other chapters in this book make precisely this case. Here, then, we merely assume it to be true.

²For the official statistics, see http://www.publicpurpose.com/hwy-fatal57+.htm.

³Says William L. Megginson and Jeffrey M. Netter, “From State to Market: A Survey of Empirical Studies on Privatization,” Journal of Economic Literature 39 (June 2001): 380: “Research now supports the proposition that privately owned firms are more efficient and more profitable than otherwise comparable state-owned firms.”

⁴According to E.S. Savas, How to Shrink Government: Privatizing the Public Sector (Chatham, N.J.: Chatham House Publishers, 1982), p. 93: “the cost of municipal (solid waste collection) service (is from) 61 to 71 percent greater than the cost . . . of contract collection.” Stated Steve H. Hanke, “Money and the Rule of Law in Ecuador,” Speech given in Quito, Ecuador (October 2003): “The public cost incurred in providing a given quantity and quality of output is about twice as great as private provision. This result occurs with such frequency that it has given rise to a rule-of-thumb: ‘the bureaucratic rule of two’.” For more on this, see Steve H. Hanke, “Privatization,” in James Eatwell, Murray Milgate and Peter Newman, eds., The New Palgrave: A Dictionary of Economics (London: Macmillan Press, 1987), pp. 976–77. For further cost comparisons, all to the denigration of the public sector, see James T. Bennett, Better Government at Half the Price (Boston: Gree Hill Publishing, 1980); Thomas erding, ed., Budgets vs. Bureaucrats: The Sources of Government Growth (Durham, N.C.: Duke University Press, 1977); James T. Bennett and Thomas DiLorenzo, “On Weather Forecasting,” Journal of Labor Research (1983); idem, Unfair Competition: The Profits of Non-Profits (New York: Hamilton Press, 1989); Robert Poole, Cutting Back City Hall (New York: Reason Press, 1976); E.S. Savas, “Refuse Collection,” Journal of Urban Analysis (1979).

⁵Aayisha F. Khursheed and Thomas E. erding, “Organizing Government Supply: The Role of Bureaucracy,” in Fred Thompson and Mark T. Green, eds., Handbook of Public Finance (New York: Marcel Dekker, 1998): 46–47.

⁶See on this also R. Ahlbrandt, “Fire Protection,” Public Choice (1973).

⁷Although the question would surely arise, “Would you buy lemonade from the government?”

⁸It will be readily appreciated that these numbers are used for illustration purposes only, and have no basis in any actual statistics.

⁹Lawrence H. White, “Comment on Block,” unpub. manuscript, p. 1.

¹⁰See on this Robert Conquest, The Great Terror (Edmonton, Alberta: 1990); ibid., The Harvest of Sorrow (New York: Oxford University Press, 1986); Stephane Courtois, Nicolas Werth, Jean-Louis Panne, Andrzej Paczkowski, Karel Bartosek and Jean Louis Margolin, The Black Book of Communism: Crimes, Terror, Repression, trans. from French by Jonathan Murphy and Mark Kramer (Cambridge, Mass.: Harvard University Press, 1999); R.J. Rummel, Death by Government (New Brunswick, NJ: Transaction Publishers, 1994); ibid., Democide: Nazi Genocide and Mass Murder (New Brunswick, N.J.: Transaction Publishers, 1992); ibid., Statistics on Democide (Charlottesville, Va.: Center on National Security and Law, University of Virginia, 1997).

¹¹http://www.Firearmsandliberty.com/waco.massacre.html.

¹²Strange why one of these two has been executed, and the other, not.

¹³White, “Comment on Block,” p. 2.

¹⁴If it were a three-lane highway, the “slow” lane might be obliged to travel at 90 mph, the medium lane at 110 and the fast lane at 130.

¹⁵Do you ever strictly adhere to statist speed limits? If you do, you’ll find that you are by far the slowest vehicle on the roadway. Do 50 in a 50 mph zone and people will give you the finger for clogging up traffic; ditto for 60 and 70 mph. Why do the road socialists perpetrate this policy on us? For one thing, if they inculcate rules that everyone breaks, there will always be a “criminal” to fine. For another, and more ominously, it may well be part of the phenomenon against which Ayn Rand, “America’s Persecuted Minority: Big Business,” in Capitalism: The Unknown Ideal. (New York: Signet, 1967), warned us. By converting all of us into lawbreakers, the government can rely upon our guilt to better rule us.

¹⁶White, “Comment on Block,” pp. 2–3.

¹⁷For an analysis of this episode, see Walter Block, “Decentralization, Subsidiarity, Rodney King and State Deification,” European Journal of Law and Economics 16, no. 2 (November): 139–47.

¹⁸Sado-masochism, child pornography, fetishes that beggar description.

¹⁹On market zoning, see Bernard Seigan, Land Use Without Zoning (Toronto: D.C. Heath).

²⁰Thomas Sowell, Race and Economics (New York: Longman, 1975); idem, Ethnic America (New York: Basic Books, 1981); idem, The Economics and Politics of Race: An International Perspective (New York: Morrow, 1983); idem, Race and Culture: A World View (New York: Basic Books, 1994).

²¹Richard Posner, Sex and Reason (Cambridge, Mass.: Harvard University Press, 1992).

²²Young people congregate in Manhattan, older ones in Florida.

²³I assume that there is a large difference between a high-speed freak and a person who merely wishes for quicker transit time, i.e., that the former will take other risks that the latter would reject out of hand.

²⁴Murder Park is an imaginary institution where people are given loaded pistols, and agree to shoot one another. For further explication of this vital industry, see Walter Block, “Kuflik on Inalienability: A Rejoinder,” unpublished ms.; idem, “Radical Privatization and other Libertarian Conundrums,” International Journal of Politics and Ethics 2, no. 2 (2002): 165–75.

²⁵The record is currently 763 miles per hour; www.landspeed.com/(11/103).

²⁶The Darwin Awards “commemorate the remains of individuals who contribute to the improvement of our gene pool by removing themselves from it in really stupid ways.” See on this www.darwinawards.com/(11/1/03).

²⁷White, “Comment on Block,” p. 3.

²⁸Ibid.

²⁹Ibid.

³⁰October 31, 2003, p. B6.

³¹White, “Comment on Block,” pp. 3–4.

³²My paper, Block (2004b), is an attempt to do just that.

³³I apologize for the continual use of this phrase. I find I am quite unable to resist.

³⁴If you can sue gun manufacturers for crimes committed with their product, there is no limit to the search for deep pockets or for perversions of liability. See on this Rothbard (1982b).

³⁵Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 163 speaks of “capitalist acts between consenting adults.”