The Fast Lane: Laws that Aid Lawbreakers

The frustration of getting stuck behind a slower vehicle on the freeway or being followed too closely by an uncourteous driver in a hurry is something we can all relate to. The driver in the leading car has three basic options when headlights appear in their rear-view mirror: (1) increase speed (and perhaps exceed the speed limit), (2) do nothing at all (and perhaps cause a traffic obstruction), or (3) move right to allow the other vehicle to pass. Road rage incidents have moved many states to require by law that motorists take the third option.

These laws are in place because we believe that they provide a net increase in highway safety by avoiding tailgating (which is also usually illegal) and road rage even though it seems to encourage, or at least facilitate, unlawful behavior–in this case speeding.

In many states, fast lane laws were originally passed in 1941 as a part of adopting the Uniform Act Regulating Traffic on Highways. It simply stated that “the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.” Utah Code 52-6-45 (1941). Stylistic amendments aside, the Utah law remained largely unchanged until 2007 when a new subsection was added that specified that if a vehicle was following another vehicle in the left general purpose lane “at a distance so that less than two seconds elapse before reaching the location of the [leading vehicle’s] location” and there is space available to yield to the right, it is prima facie evidence that the driver of the leading vehicle is impeding traffic.” Utah Code 41-6a-704 (2007). Somewhat ironically, the very next section modified during that session governed the safe distance for following another vehicle and set the minimum distance at the “two second rule” just described. Utah Code 41-6a-711 (2008). One might wonder which car would be pulled over when an officer encounters a vehicle following another too closely in the fast lane because Section 704 applies to the slow driver and Section 711 applies to the tailgater.Tinkering with this law continues to this day. Just this last session, a bill was introduced to restrict this law to “free-flowing traffic.” H.B. 122 (2014).

Other states have been slow to adopt a fast lane law. In Florida, for example, some argue that the proposed laws punish law abiding citizens for failing to get out of the way of lawbreakers. Moreover, they argue would do nothing to clear traffic because the problems are actually caused by “road raging speeders, who demand priority” and “dart in and out of traffic.” Indeed, the law was slated as a “road rage bill.” Proponents argued that slower drivers make themselves a hazard and that drivers should not drive slowly “to enforce the speed limit.” In each of the debates and commentaries, from state to state, it appears that there has been some recognition that these laws alleviate the frustration of those that would prefer to break the speed limit and that society gains a net safety benefit from their passage.

Supporters of fast lane laws seem to have won out as nearly every state has adopted the measure in one form or another. Some require vehicles to keep right except to pass. Others, like Utah, require slower vehicles to move out of the left lane to allow faster vehicles to pass. Some states have no requirement or only require vehicles in the left lane to move at the speed limit.

This concept is not limited to traffic alone. There are other laws that create “fast lanes” that incidentally facilitate wrongdoing or even outright lawbreaking because they yield a net benefit to society. For example common law rule that property owners are responsible for dangerous conditions on their property that harms those that come onto the property—even trespassers. Wal-Mart’s policy on shoplifting provides lenience for thefts of merchandise under twenty-five dollars. Wal-mart has even fired employees for failing to adhere to the policy.

“Fast lanes” are not poorly written laws that unintentionally exclude certain conduct that arguably violate the spirit of the law nor are they exceptions that avoid including conduct that should not be illegal. “Fast lanes” intentionally facilitate admittedly unlawful or unethical behavior because we believe that facilitating the behavior will actually provide a net benefit to society.

These types of laws are easiest to justify when two wrongs combine to create a hazardous condition (like the slow driver and the tailgater) or when the risks created by addressing the wrong are greater than the harm they would prevent (like the Wal-mart policy). This principle could potentially find application in immigration law, drug control, and perhaps even intellectual property.

Are there any laws where facilitating lawbreakers might be justified? Does it only apply when two wrongs occur? Or can selective enforcement be justified through a cost-benefit analysis?

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