Public Law & Legal Theory
This is a paper about using reputation tracking technologies to displace criminal law enforcement and improve the tort system. The paper contains an extended application of this idea to the regulation of motorist behavior in the United States and examines the broader case for using technologies that aggregate dispersed information in various settings where reputational concerns do not adequately deter antisocial behavior. The paper begins by exploring the existing data on “How’s My Driving?” programs for commercial fleets. Although more rigorous study is warranted, the initial data is quite promising, suggesting that the use of “How’s My Driving?” placards in commercial trucks is associated with fleet accident reductions ranging from 20% to 53%. The paper then proposes that all vehicles on American roadways be fitted with “How’s My Driving?” placards so as to collect some of the millions of daily stranger-on-stranger driving observations that presently go to waste. By delegating traffic regulation to the motorists themselves, the state might free up substantial law enforcement resources, police more effectively dangerous and annoying forms of driver misconduct that are rarely punished, reduce information asymmetries in the insurance market, improve the tort system, and alleviate road rage and driver frustration by providing drivers with opportunities to engage in measured expressions of displeasure. The paper addresses obvious objections to the displacement of criminal traffic enforcement with a system of “How’s My Driving?”-based civil fines. Namely, it suggests that by using the sorts of feedback algorithms that eBay and other reputation tracking systems have employed, the problems associated with false and malicious feedback can be ameliorated. Indeed, the false feedback problem presently appears more soluble in the driving context than it is on eBay. Driver distraction is another potential pitfall, but available technologies can address this problem, and the implementation of a “How’s My Driving?” for Everyone system likely would reduce the substantial driver distraction that already results from driver frustration and rubbernecking. The paper also addresses the privacy and due process implications of the proposed regime. It concludes by examining various non-driving applications of feedback technologies to help regulate the conduct of soldiers, police officers, hotel guests, and participants in virtual worlds, among others.
Lior Strahilevitz, "'How's My Driving?' for Everyone (and Everything?)," University of Chicago Public Law & Legal Theory Working Paper, No. 125 (2006).