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Tort and insurance law treat driving as a centrally important activity and treat injuries caused by automobiles as more significant than other injuries. The role of tort and insurance law in privileging injuries from driving, and driving itself, is largely unacknowledged in torts and insurance law scholarship. The Article shows how the negligence regime and automobile insurance regulation together function to actively support driving. They create a most-favored injury status for injuries caused by cars. The interlocking tort liability regime and automobile insurance system create a “choice architecture,” to use Cass Sunstein’s and Richard Thaler’s phrase, that favors and encourages driving. While the hierarchy of injury and encouragement of car use were understandable decades ago, they are unjustifiable today. Given the negative public health, sprawl, environmental, and other consequences of driving, and the importance of insurance to driving, it is time to consider ways that the choice architecture of tort and insurance law could be shifted to discourage driving. Two automobile insurance reforms are ideal candidates: The first is to make the ongoing costs of auto insurance visible to people as they drive, instead of making those costs practically invisible as the current payment structure does. A second way is to encourage usage-based, also known as pay-as-you-drive programs, on a widespread basis. These two steps are likely to reduce the amount of driving, with many positive consequences.

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Loyola of Los Angeles Law Review



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