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New York University Law Review


This is an Article about using reputation-tracking technologies to displace criminal law enforcement and improve the tort system. The Article contains an extended application of this idea to the regulation of motorist behavior and examines the broader case for using technologies that aggregate dispersed information in various settings where reputational concerns do not adequately deter uncooperative behavior. The Article proposes a compulsory "How's My Driving?" program for all motor vehicles. Although more rigorous study is warranted, the initial data from voluntary "How's My Driving?" programs is quite promising, suggesting that the use of "How's My Driving?" placards on commercial trucks is associated with fleet accident reductions ranging from 20% to 53%. By delegating traffic regulation to the motorists themselves, the state might free up substantial law enforcement resources, more effectively police dangerous and annoying forms of driver misconduct, reduce information asymmetries in the insurance market, and alleviate road rage and driver frustration. The Article 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 using the sorts of feedback algorithms that eBay and other reputation-tracking systems have employed can ameliorate the problems associated with false and malicious feedback. The Article also explains why driver distraction costs would be manageable and addresses privacy and due process implications of the proposed regime. The core strategy animating "How's My Driving?" for Everyone is to use technology to transform loose-knit environments, where reputation often fails to constrain antisocial behavior, into close-knit environments, where reputation constrains misbehavior more effectively. Using such technologies, society can replace state policing with citizen policing and laws with norms. The Article concludes by examining various nondriving applications of feedback technologies to help regulate the conduct of soldiers, police officers, hotel guests, sports spectators, and participants in virtual worlds, among others.

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