How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes

Indiana Law Journal

Volumn 75, Issue 4, 2000, Pages 1191-1296

  Strahilevitz, Lior Jacob ^a  

^a NONE

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EID: 0347705209     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (139)

1. See sources cited infra note 268.
2. See infra text accompanying note 273.
3. See infra text accompanying notes 283-84.
4. See infra text accompanying notes 276-78.
5. See infra text accompanying notes 279-82.
6. Michael J. Sandel, Editorial, It's Immoral To Buy the Right To Pollute, N.Y. TIMES, Dec. 15, 1997, at A23. Sandel is the only scholar other than I to note in print the connection between emissions trading and selling access to carpool lanes, and his treatment of the subject is entirely encapsulated in the paragraph reproduced in the text.
7. This is the flip side of saying that the government favored carpoolers by allowing them speedier commutes than solo drivers.
8. In this instance the market price was mediated by the government. Note, however, that the price of accessing the Express Lanes increased as more drivers sought to do likewise - just as market prices for any commodity should increase when the number of buyers rises and the quantity of the product remains constant. See infra note 111.
9. See infra text accompanying note 289.
10. See infra text accompanying note 113.
11. In this Article I define norms as patterns of behavior that are widely adhered to by some group of individuals, at least in part because of social pressures to conform to that norm. Taboos against adultery, smoking in a no-smoking area, the use of profanity when children are present, and failing to wash one's hands after using a restroom are examples of norms. So are affirmative practices such as the American practice of shaking hands, the Japanese practice of bowing, the exchanging of pleasantries at the start of a job interview, and the reliance of American lawyers on Latin phraseology. Norms can be distinguished from other forms of human behavior that are widely adhered to for reasons having nothing to do with social pressures. For example, everyone squints when exposed to bright sunlight, and many people snore while sleeping, but these practices are due to biological pressures, as opposed to social ones. Note that with the ultimate example, as various technological gizmos designed to control snoring are developed and marketed, a social norm against snoring by those who do not sleep alone may gradually emerge. Of course, norms have two components: Norms both describe how people do behave and dictate how, according to the relevant community's standards, they should behave. In this Article some of the phenomena I have described as being norm-driven will perhaps cause some readers to bristle. For example, I refer to a "norm" of solo commuting, even though most solo commuters understand that society would be better off if they instead adhered to a carpooling norm. But the decision to drive solo is largely dictated by social pressures, such as the arrangement of work schedules, notions about the value of privacy and solitude, decisions about where to live, and automobile advertising, to give a few examples. Consumer preferences for certain types of products and behaviors can become norms precisely because those preferences are heavily shaped by factors exogenous to the individual consumer. And there is nothing contradictory about pointing to conflicts among norms governing how people should behave and do behave or recognizing that powerful, contradictory norms often send individuals mixed messages about how they should behave. Nor does it stretch the concept of norms too far to say that norms are behavioral patterns that influence decisional matrices as seemingly different as how ranchers resolve cattle disputes and how parents decide to meet their families' transportation needs.
12. See Robert D. Putnam, Bowling Alone: America's Declining Social Capital, 6 J. DEMOCRACY 65 (1995). Putnam recently released a book with the same title. See ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY (2000).
13. See Robert D. Putnam, Bowling Alone: America's Declining Social Capital, 6 J. DEMOCRACY 65 (1995). Putnam recently released a book with the same title. See ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY (2000).
14. See Craig N. Oren, Getting Commuters out of Their Cars: What Went Wrong?, 17 STAN. ENVTL. L.J. 141, 163-64 (1998) (noting that vehicle occupancy dropped from 1.3 passengers per vehicle in 1977 and 1983 to 1.1 in 1990, and that "four million fewer workers carpooled in 1990 than in 1980"); U.S. Census Bureau, Means of Transportation to Work for the U.S. (visitedMay 23, 2000)〈http:/www.census.gov/population/socdemo/journey/mode67 90.txt〉 (noting that the percentage of workers carpooling to work declined from 19.7% in 1980 to 13.4% in 1990).
15. See generally JOHN F. KAIN, THE IMPACTS OF CONGESTION PRICING ON TRANSIT AND CARPOOL DEMAND AND SUPPLY 29 tbl.7 (Harvard Inst. of Econ. Research Discussion Paper No. 1643, 1993) (collecting data showing that in 1990 the majority of households in heavily congested major metropolitan areas owned two or more cars). There are a number of other reasons explaining the rise in solo driving. For a full exploration, see Oren, supra note 13, at 160-74.
16. See PETER FREUND & GEORGE MARTIN, THE ECOLOGY OF THE AUTOMOBILE 9 (1993).
17. See U.S. Census Bureau, supra note 13; see also CHARLES L. WRIGHT, FAST WHEELS, SLOW TRAFFIC: URBAN TRANSPORT CHOICES 37-38 (1992) (quoting an earlier figure of 1.15). See generally KAIN, supra note 14, at 29 tbl.7 (noting that in the nation's most congested urban areas [excluding New York City] almost 73% of all trips to work are in single occupant vehicles, versus 11% in carpools, and less than 9% on mass transit).
18. See FREUND & MARTIN, supra note 15, at 82, 86; see also Len Holden, More Than a Marque. The Car as Symbol: Aspects of Culture in the 20th Century, in THE MOTOR CAR AND POPULAR CULTURE IN THE 20TH CENTURY 28, 29 (David Thorns et al. eds., 1998) (noting that the car's "widespread use in film and literature as a metaphor for freedom, of 'moving on' and starting over is reflective of individualism and the need for control over one's destiny, concepts powerful in the West especially in the USA").
19. FREUND & MARTIN, supra note 15, at 99.
20. This interest in escaping helps explain why so many Americans are resistant to using mass transit. As Charles Wright has observed, "few people are attracted to transit for the opportunity it affords them to meet strangers." WRIGHT, supra note 16, at 116. From a communitarian point of view, it is debatable whether the atomization of driving experiences is a good or a bad thing. The community-building possibilities for carpooling should not be discounted. See Richard Simon & Geoff Boucher, Foes of Carpool Lanes Get New Ammunition, L.A. TIMES, Nov. 29, 1998, at A1 ("There also are stories about how carpooling led to romances and even the reunion of two long-lost sisters.").
21. Cf. KENNETH A. SMALL, URBAN TRANSPORTATION ECONOMICS 151 (1992) ("Carpooling provides flexible service with far less use of highway infrastructure and parking facilities than solo driver [sic].").
22. Robert W. Poole, Jr., Private Toll Roads, in PRIVATIZING TRANSPORTATION SYSTEMS 165, 166 (Simon Hakim et al. eds., 1996); see also KENNETH A. SMALL ET AL., ROAD WORK: A NEW HIGHWAY PRICING AND INVESTMENT POLICY 80-81 (1989) (providing additional data on increasing levels of metropolitan road congestion).
23. Robert W. Poole, Jr., Private Toll Roads, in PRIVATIZING TRANSPORTATION SYSTEMS 165, 166 (Simon Hakim et al. eds., 1996); see also KENNETH A. SMALL ET AL., ROAD WORK: A NEW HIGHWAY PRICING AND INVESTMENT POLICY 80-81 (1989) (providing additional data on increasing levels of metropolitan road congestion).
24. See Charles Komanoff, Pollution Taxes for Roadway Transportation, 12 PACE ENVTL. L. REV. 121, 129 (1994).
25. See id. at 133. Of course, when cars moving slowly in bumper to bumper traffic collide, the damage is less likely to be severe (and costly) than when cars moving at high speeds collide.
26. See Thomas O. McGarity, Regulating Commuters To Clear the Air: Some Difficulties in Implementing a National Program at the Local Level, 27 PAC. L.J. 1521, 1526-28 (1996); Tirza S. Wahrman, Breaking the Logjam: The Peak Pricing of Congested Urban Roadways Under the Clean Air Act To Improve Air Quality and Reduce Vehicle Miles Traveled, 8 DUKE ENVTL. L. & POL'Y F. 181, 196 (1998).
27. See Thomas O. McGarity, Regulating Commuters To Clear the Air: Some Difficulties in Implementing a National Program at the Local Level, 27 PAC. L.J. 1521, 1526-28 (1996); Tirza S. Wahrman, Breaking the Logjam: The Peak Pricing of Congested Urban Roadways Under the Clean Air Act To Improve Air Quality and Reduce Vehicle Miles Traveled, 8 DUKE ENVTL. L. & POL'Y F. 181, 196 (1998).
28. See, e.g., Cheryl Crabb, Poll Respondents Cite Mass Transit, Road Widening and Building Ban as Solutions, ATLANTA J. & CONST., Jan. 21, 1999, at 04JH (reporting that 67% of north Atlanta suburban residents support increased spending on mass transit, as opposed to 31% prefering road widening as a means of combating traffic congestion, despite the fact that 90% of the residents commute to work alone); Erik Kriss, Public: Term Limits, No Parole: New York Voters Send a Message in the Latest Statewide Poll, POST-STANDARD (Syracuse), June 30, 1998, at A1 (reporting that New York residents support increased spending on mass transit), available in 1998 WL 4365086; see also PETER D. HART RESEARCH ASSOCS., U.S. DEP'T OF TRANSP., A SURVEY OF AMERICAN ATTITUDES TOWARD TRANSPORTATION 35 (1978) (noting that over 70% of those in major metropolitan areas favored increased spending on mass transit); Komanoff, supra note 22, at 134 (providing similar data from the UK).
29. See, e.g., Cheryl Crabb, Poll Respondents Cite Mass Transit, Road Widening and Building Ban as Solutions, ATLANTA J. & CONST., Jan. 21, 1999, at 04JH (reporting that 67% of north Atlanta suburban residents support increased spending on mass transit, as opposed to 31% prefering road widening as a means of combating traffic congestion, despite the fact that 90% of the residents commute to work alone); Erik Kriss, Public: Term Limits, No Parole: New York Voters Send a Message in the Latest Statewide Poll, POST-STANDARD (Syracuse), June 30, 1998, at A1 (reporting that New York residents support increased spending on mass transit), available in 1998 WL 4365086; see also PETER D. HART RESEARCH ASSOCS., U.S. DEP'T OF TRANSP., A SURVEY OF AMERICAN ATTITUDES TOWARD TRANSPORTATION 35 (1978) (noting that over 70% of those in major metropolitan areas favored increased spending on mass transit); Komanoff, supra note 22, at 134 (providing similar data from the UK).
30. See, e.g., Cheryl Crabb, Poll Respondents Cite Mass Transit, Road Widening and Building Ban as Solutions, ATLANTA J. & CONST., Jan. 21, 1999, at 04JH (reporting that 67% of north Atlanta suburban residents support increased spending on mass transit, as opposed to 31% prefering road widening as a means of combating traffic congestion, despite the fact that 90% of the residents commute to work alone); Erik Kriss, Public: Term Limits, No Parole: New York Voters Send a Message in the Latest Statewide Poll, POST-STANDARD (Syracuse), June 30, 1998, at A1 (reporting that New York residents support increased spending on mass transit), available in 1998 WL 4365086; see also PETER D. HART RESEARCH ASSOCS., U.S. DEP'T OF TRANSP., A SURVEY OF AMERICAN ATTITUDES TOWARD TRANSPORTATION 35 (1978) (noting that over 70% of those in major metropolitan areas favored increased spending on mass transit); Komanoff, supra note 22, at 134 (providing similar data from the UK).
31. See PETER SAMUEL, HOW TO "BUILD OUR WAY OUT OF CONGESTION": INNOVATIVE APPROACHES TO EXPANDING URBAN HIGHWAY CAPACITY 4 (Reason Pub. Pol'y Inst. No. 250, 1999); Craig N. Oren, How a Mandate Came from Hell: The Making of the Federal Employee Trip Reduction Program, 28 ENVTL. L. 267, 297 (1998); see also FREUND & MARTIN, supra note 15, at 90-91 (noting that men are particularly reluctant to give up their cars).
32. See PETER SAMUEL, HOW TO "BUILD OUR WAY OUT OF CONGESTION": INNOVATIVE APPROACHES TO EXPANDING URBAN HIGHWAY CAPACITY 4 (Reason Pub. Pol'y Inst. No. 250, 1999); Craig N. Oren, How a Mandate Came from Hell: The Making of the Federal Employee Trip Reduction Program, 28 ENVTL. L. 267, 297 (1998); see also FREUND & MARTIN, supra note 15, at 90-91 (noting that men are particularly reluctant to give up their cars).
33. Peter Jones, Urban Road Pricing: Public Acceptability and Barriers to Implementation, in ROAD PRICING, TRAFFIC CONGESTION AND THE ENVIRONMENT: ISSUES OF EFFICIENCY AND SOCIAL FEASIBILITY 263, 265 (Kenneth J. Button & Erik T. Verhoef eds., 1998) [hereinafter ROAD PRICING]; see also Wahrman, supra note 24, at 196 ("Congestion is a classic negative externality. As additional road users occupy the road, the quality of service provided to all users declines.").
34. See generally Daphna Lewinsohn-Zamir, Consumer Preferences, Citizen Preferences, and the Provision of Public Goods, 108 YALE L.J. 377, 378 (1998) (summarizing the literature on the consumer preferences/citizen preferences split). Lewinsohn-Zamir uses the example of litterers who nevertheless demand increased funding for environmental protection programs. See id. at 382.
35. See generally Robert Preer, Commuters Adjusting to Life in the Zipper Lane, BOSTON GLOBE, Nov. 22, 1998 (South Weekly), at 1 (discussing the controversy in Boston over whether two-passenger vehicles should be allowed to use the carpool lanes).
36. See Komanoff, supra note 22, at 135; Editorial, HOVs and Traffic Jams, COMMERCIAL APPEAL (Memphis), Dec. 1, 1998, at A8.
37. See Matthew K. Gagelin, Employer Trip Reduction - Who Is Responsible for Organizing the Carpool?, 1 ENVTL. LAW. 203 (1994); Carol J. Castaneda, Fear of 'Lexus Lanes'Unfounded: Fast-Lane for a Fee Has a Broad Appeal, USA TODAY, Mar. 3, 1997, at 4A.
38. See Matthew K. Gagelin, Employer Trip Reduction - Who Is Responsible for Organizing the Carpool?, 1 ENVTL. LAW. 203 (1994); Carol J. Castaneda, Fear of 'Lexus Lanes'Unfounded: Fast-Lane for a Fee Has a Broad Appeal, USA TODAY, Mar. 3, 1997, at 4A.
39. See SAMUEL, supra note 26, at 4; John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 MD. L. REV. 1183, 1204 (1995); Gagelin, supra note 31, at 210-11; Laura Rapacioli, Note & Comment, Be Careful What You Ask for: Attacking the Constitutionality of the Clean Air Act Operating Permit Program, 14 PACE ENVTL. L. REV. 323, 334-36 (1996).
40. See SAMUEL, supra note 26, at 4; John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 MD. L. REV. 1183, 1204 (1995); Gagelin, supra note 31, at 210-11; Laura Rapacioli, Note & Comment, Be Careful What You Ask for: Attacking the Constitutionality of the Clean Air Act Operating Permit Program, 14 PACE ENVTL. L. REV. 323, 334-36 (1996).
41. See Debra J. Saunders, Editorial, Gridlock Will Set You Free?, S.F. CHRON., Mar. 23, 1999, at A19, available in 1999 WL 2682878.
42. See, e.g., Oren, supra note 13, at 147; Simon & Boucher, supra note 19, at A1 ("One carpool lane [in New Jersey] carried as few as 32 vehicles per hour; at times there were as many law-breaking solo commuters in the lane as carpoolers."); id. ("Gov. Christine Todd Whitman wrote in a letter to federal officials [that] New Jersey was unable to change the driving patterns of motorists using the roads."). But see id. ("Caltrans also contends that high occupancy lanes have encouraged carpooling, noting that Southern California's ride-share rate has held steady, even as the population has increased and as carpooling has declined nationally."); id. ("The Foothill Freeway carries up to 1,800 vehicles per hour in the carpool lane during the peak period - so many that carpoolers often slow to about 45 mph during rush hour. Each of the two elevated carpool lanes on the Harbor Freeway, opened last year, carry up to 1,400 vehicles per hour during peak periods.").
43. See Angela Paik, Life in the Fast Lane, NEWS & OBSERVER (Raleigh, NC), Oct. 25, 1998, at A1, available in 1998 WL 6160794 ("'If you drive this every day, you have to see the people whizzing by you in these [HOV] lanes, and I'd imagine that'd be a pretty big selling point to go and get a partner to ride to work with.'") (alteration in original) (quoting State Trooper Tim Confroy).
44. See From the Drivers' Point of View, STAR-LEDGER (Newark), June 24, 1998, at 12, available in 1998 WL 3425505 (reprinting comments from motorists who are furious about the underutilization of New Jersey's HOV lanes and congestion of the general purpose lanes); Preer, supra note 29, at 1 (quoting a state representative who reports that he has "heard from a number of people who experience frustration when they are in the other lanes and they look over and see it empty"). But see Paik, supra note 35, at A1. These new HOV lanes probably will lead to more "slugging," a bizarre hybrid of car-pooling that accounts for about 10 percent of all trips on I-95's HOV lanes. Every afternoon, commuters in suits line up in the shadow of the Washington Monument to catch free rides home. Solo drivers stop to fill up their cars with these "slugs" so they can get access to uncongested HOV lanes. Id.
45. See generally GODBE RESEARCH & ANALYSIS, FOCUS GROUP RESEARCH FOR I-15 COMMUTERS (1998), available in (visited May 23, 2000) 〈http://www.sandag.cog.ca.us/data_ services/fastrak/pdfs/report2.pdf〉 (collecting comments from motorists who are infuriated by the underutilization of New Jersey's HOV lanes, which they perceive as a waste of scarce highway space).
46. See Simon & Boucher, supra note 19, at A1.
47. Komanoff, supra note 22, at 135; see also Oren, supra note 13, at 218-19 (noting the reasons why some environmental groups oppose HOV lanes).
48. At least one account suggests that in urban areas the cost of constructing wider freeways rises exponentially. Thus, an eight-lane highway costs more than twice as much as a four-lane highway. See A.A. WALTERS, THE ECONOMICS OF ROAD USER CHARGES 184 (1968). But cf. David M. Levinson, Road Pricing in Practice, in ROAD PRICING, supra note 27, at 14, 61. Hence for . . . the existence of large fixed costs in the presence of indivisibilities, the technology of road capacity, and the earth moving costs, we can claim that there are economies of scale associated with the expansion from a two-lane to a four-lane road. Nevertheless . . . it is not clear that economies of scale in urban highway construction exist. Id.
49. At least one account suggests that in urban areas the cost of constructing wider freeways rises exponentially. Thus, an eight-lane highway costs more than twice as much as a four-lane highway. See A.A. WALTERS, THE ECONOMICS OF ROAD USER CHARGES 184 (1968). But cf. David M. Levinson, Road Pricing in Practice, in ROAD PRICING, supra note 27, at 14, 61. Hence for . . . the existence of large fixed costs in the presence of indivisibilities, the technology of road capacity, and the earth moving costs, we can claim that there are economies of scale associated with the expansion from a two-lane to a four-lane road. Nevertheless . . . it is not clear that economies of scale in urban highway construction exist. Id.
50. See, e.g., Oren, supra note 13, at 218 ("One study suggests that a network of 344 miles of HOV lanes in the Washington, D.C. area would reduce trips to work by 2.3%, and that the modest air quality impact might be offset by the driving required to assemble the carpool.").
51. For a discussion of how different subgroups within a single community can adhere to competing norms, see infra text accompanying notes 256-59.
52. Indeed, to the extent that these portrayals romanticize the activity of driving alone, they may push the norm of solo driving in the direction of becoming a solo-commuting norm. But few, if any, romantic portrayals of the solo driver lionize the solo commuter. Rather, it is the solo-driving beatnik, adventurer, or traveler who is portrayed flatteringly.
53. See Gagelin, supra note 31, at 246 n.278.
54. My use of the term "aspirational norm" is similar to Howard Margolis's use of the same phrase. See Howard Margolis, Equilibrium Norms, 100 ETHICS 821, 833 (1990) ("In their most fundamental significance, aspirational norms are rules of thumb about what everybody knows would be socially best . . . .").
55. See generally Oren, supra note 13, at 218-19 (discussing the serious backlash that occurred when, in the 1970s, the EPA tried to force carpool lanes upon Los Angeles by converting existing general purpose lanes into carpool lanes); Steve Carney, Car-pool Lane Rage, L.A. DAILY NEWS, Dec. 13, 1999, at 1 (discussing recent opposition to HOV lanes in California and New Jersey); Paik, supra note 35, at A1 ("HOV lanes recently bombed in New Jersey but are being expanded in Atlanta, Seattle, Dallas and elsewhere.").
56. See infra text accompanying note 238.
57. Cf. FRANK WILSON & ASSOCS., EXPRESSPASS PHASE II MARKETING PLAN 7 (1999), available in (visited May 12, 2000) 〈http://www.sandag.cog.ca.us/data_services/fastrak/pdfs/ mktpln3.pdf〉; Paik, supra note 35, at A1. For patrol officers, the only comic relief comes when commuters try to pass off mannequins and blow-up dolls as passengers. . . . "It's fun when you run into that. You can take the mannequin out and put it on top of the car while you're writing the ticket. You'll get a lot of people honking and cheering you on that way." Id. (quoting State Trooper Tim Confroy).
58. Cf. GODBE RESEARCH & ANALYSIS, supra note 37, at 11 ("Respondents in the part-time user group said, 'I think the stiffness of the fine mitigates against (violation)' and '$271.00 [the amount of the fine for violation] is the only thing that keeps me from cheating.")
59. In a survey of San Diego commuters, fully 6 out of 10 owned cellular telephones, pagers, or both. See WILBUR SMITH ASSOCS., BASELINE MARKET SURVEY 12 (1996), available in (visited May 13, 2000) 〈http://www.sandag.cog.ca.us/data_services/fastrak/pdfs/task-3a.pdf〉.
60. Seattle, Washington, has a similar tattle-tale program, but signs along that city's freeways lack the panache of their D.C. counterparts: Seattle's signs drably read "Report HOV Violators." An interesting alternative would be to pay whistleblowers a bounty when their tips to law enforcement result in the issuance of a ticket. As Dan Kahan observes, a similar strategy has been employed in some public schools where guns are rampant. See Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 364 (1997). Students receive cash rewards if they provide school officials with information that results in the apprehension of a gun-toting classmate. See id. Kahan astutely sees this program as an effort not only to boost compliance with rules against bringing guns to schools, but also to change social norms concerning gun ownership by students. See id. Whereas machismo norms previously prompted students to "show" off their guns, the program is designed to make gun ownership more secretive, and thus less "cool." Id.
61. As Peter Samuel wrote in a recent exchange on the University of Minnesota's Congestion Pricing List Server: On the Virginia Beach HOV in the Tidewater VA region some recent official data showed more SOVs in the HOV lane in rush hour than HOVs ie a violation rate over 50 percent. From memory one count was 57 pc violators. The locals have simply given up on HOV. Top officials there told me they'd tried everything for 5 years and the numbers carpooling just keep dropping and the HOV lanes not only have fewer vehicles but also fewer passengers than unrestricted lanes and that is despite almost no enforcement. I guess if they started enforcement now it would probably kill HOV because of the outcry and because it would reveal the collapse of real HOV. Email from Peter Samuel to Con-Price List Serve (Jan. 6, 1999) (on file with author); see also Carney, supra note 46, at 10 (noting that in New Jersey, prior to the elimination of carpool lanes along some sections of interstate highways, as many as half the lanes' users were solo drivers flouting the law); Paik, supra note 35, at A1 ("Virginia authorities estimate that 9 percent to 20 percent of all vehicles on HOV lanes don't have the required number of passengers. Troopers say that - with their other duties - they can't spend much time looking for violators.").
62. Cf. Geoffrey C. Hazard, Jr., Laws, Morals, and Ethics, 19 S. ILL. U. L.J. 447, 456 (1995). [T]hose who disobey the speeding laws . . . do not consider themselves oblivious to community norms. Rather, they believe that the community in practice recognizes that some ethical norm has "trumped" the legal norm. Most drivers would say, for example, that driving over the posted speed limit is only technically wrongful. But they would also say that driving 85 miles an hour violates the ethics of driving. Id.; see also Margolis, supra note 45, at 822 (noting that drivers would not be subjected to scowls from other motorists for driving ten miles over the speed limit when everyone else is doing the same thing); Michael W. Carroll, Note, When Congress Just Says No: Deterrence Theory and the Inadequate Enforcement of the Federal Election Campaign Act, 84 GEO. L.J. 551, 568 n. 131 (1996) ("Although speeding currently is punishable by a monetary fine as a criminal misdemeanor, I assert that the vast majority of Americans would not consider a person driving 60 miles per hour in a 55-mile-per-hour zone to be morally blameworthy. Thus, the sanction is monetary only because those caught for speeding are not stigmatized.").
63. Cf. Geoffrey C. Hazard, Jr., Laws, Morals, and Ethics, 19 S. ILL. U. L.J. 447, 456 (1995). [T]hose who disobey the speeding laws . . . do not consider themselves oblivious to community norms. Rather, they believe that the community in practice recognizes that some ethical norm has "trumped" the legal norm. Most drivers would say, for example, that driving over the posted speed limit is only technically wrongful. But they would also say that driving 85 miles an hour violates the ethics of driving. Id.; see also Margolis, supra note 45, at 822 (noting that drivers would not be subjected to scowls from other motorists for driving ten miles over the speed limit when everyone else is doing the same thing); Michael W. Carroll, Note, When Congress Just Says No: Deterrence Theory and the Inadequate Enforcement of the Federal Election Campaign Act, 84 GEO. L.J. 551, 568 n. 131 (1996) ("Although speeding currently is punishable by a monetary fine as a criminal misdemeanor, I assert that the vast majority of Americans would not consider a person driving 60 miles per hour in a 55-mile-per-hour zone to be morally blameworthy. Thus, the sanction is monetary only because those caught for speeding are not stigmatized.").
64. See, e.g., Stephen H. Burrington, Restoring the Rule of Law and Respect for Communities in Transportation, 5 N.Y.U. ENVTL. L.J. 691, 704 (1996) ("Speed kills: the probability of a pedestrian being killed is 3.5% when a vehicle is traveling at 15 miles per hour, but increases more than ten-fold to 37% at 31 miles per hour and increases to 83% at 44 miles per hour.").
65. See U.S. DEP'T OF TRANSP., NATIONAL MAXIMUM SPEED LIMIT - FISCAL YEAR 1993: TRAVEL SPEEDS, ENFORCEMENT EFFORTS, AND SPEED-RELATED HIGHWAY SAFETY STATISTICS tbl.1 (1995); Nikolaus F. Schandlbauer, Comment, Busting the "Fuzzbuster": Rethinking Bans on Radar Detectors, 94 DICK. L. REV. 783, 783-84 (1990).
66. See, e.g., Ronald J. Krotoszynski, Jr., Building Bridges and Overcoming Barricades: Exploring the Limits of Law as an Agent of Transformational Social Change, 47 CASE W. RES. L. REV. 423, 424 n.3 (1997). Lowering the speed limit to 55 miles per hour . . . did not alter the usual driving habits of most motorists. Moreover, many state highway patrol officers did not strictly enforce the speed limit, generally affording motorists a zone of administrative grace of between five and nine miles per hour. Thus, Congress' attempt to alter the driving habits of the American public failed, both as a matter of changing the behavior of individual citizens and as an enforcement priority by law enforcement officers. Id.
67. William S. Vickrey, Pricing in Urban and Suburban Transport, in READINGS IN URBAN TRANSPORTATION 120, 120 (George M. Smerk ed., 1968).
68. See William S. Vickrey, Privatization and Marketization of Transportation, in PRIVATIZING TRANSPORTATION SYSTEMS, supra note 21, at 221, 226.
69. Other advocates of congestion pricing have pointed to ways in which it might correct for other inefficiencies. For example, John Kain argues that congestion pricing would create a market test that could help the government determine which roads (and potential roads) will produce the greatest economic benefits: Since the prices charged vehicle users for the use of streets and highways in the U.S. currently bear little or no relationship to these long run costs [of providing additional capacity], however, it is likely that the capacities of these facilities are far from optimal. My hunch is that the full scale implementation of congestion pricing would demonstrate that existing highway networks are generally overbuilt, but that some segments, particularly relatively cheap roads in rapidly growing areas, are underbuilt. . . . In these cases congestion tolls would provide clear evidence that more capacity should be provided. KAIN, supra note 14, at 6.
70. See Komanoff, supra note 22, at 132.
71. See Wahrman, supra note 24, at 182, 196.
72. See FEDERAL HIGHWAY ADMIN., U.S. DEP'T OF TRANSP., CONGESTION PRICING NOTES 8 (1998).
73. John Kain argues that congestion pricing would make many motorists see transit or carpooling as more attractive alternatives to SOV driving: [T]wo changes in supply characteristcs will make carpooling and transit more attractive. First, the relative money cost of both carpools and transit will decline as the money cost of SOV trips increases. Second, the service quality, trips times and reliability, of both transit and carpools will improve relative to the pre-pricing SOV alternative, although, of course, not relative to post-congestion-pricing SOVs. The most obvious way in which congestion pricing would improve the service quality of both carpools and buses is by increasing vehicle speeds and reliability (reducing the variance of travel times). . . . In the case of carpools, for example, the implementation of congestion pricing would tend to increase the supply of potential carpool matches for O&D pairs that experience large increases in money costs and large decreases in carpool travel times. The supply effects of congestion pricing are likely to be even larger for bus transit. To the extent that congestion pricing increases the number of transit users, this increased demand, depending on how the transit operator responds, may lead to increased frequencies (reduced headways) on existing routes. Mode choice studies have shown that tripmakers have a much greater disutility for time spent walking to/from and waiting for transit vehicles. . . . [relative to] in-vehicle transit times . . . . KAIN, supra note 14, at 34-35.
74. Empirical evidence from congestion-pricing experiments in Singapore and Stuttgart, Germany, shows that congestion pricing there prompted noticeable increases in carpooling. See Kenneth A. Small & Jose A. Gomez-Ibañez, Road Pricing for Congestion Management: The Transition from Theory to Policy, in ROAD PRICING, supra note 27, at 213, 216, 238. Even if carpools are not exempted from having to pay the congestion prices, there will still be an incentive to carpool as long as the charge is assessed per-vehicle. Multiple passengers can divide up the charge amongst themselves.
75. See, e.g., Wahrman, supra note 24, at 198 ("[T]he available data suggests that congestion pricing with moderate toll increases during peak usage would have substantial impacts on reducing congestion."); see also Komanoff, supra note 22, at 132 ("[C]ongestion pricing of roads would be expected to reduce peak usage of roadways via modal shifts to other forms of travel (e.g., train, bus, bicycle, ridesharing) or shifts in time of travel.").
76. In this Article, I am not interested in taking a position one way or another on the justice of congestion pricing as applied to roads. I therefore focus on whether the FasTrak program is perceived as just, not whether it actually is just - however justice might be measured.
77. Administrative concerns currently caution against any effort to differentiate among road users on the basis of income. But see Wahrman, supra note 24, at 206 ("Assuming a distributional impact is found among lower-income motorists, the electronic toll system with individual user accounts does permit for income-based rebates. Accordingly, motorists who earn below a certain income level could be eligible for rebates based on their annual usage.").
78. See, e.g., LEE W. MUNNICH, JR., ET AL., INSTITUTIONAL AND POLITICAL ISSUES IN CONGESTION PRICING: NEW MODELS FOR FEDERAL, STATE, AND LOCAL COOPERATION IN INFRASTRUCTURE INVESTMENT 6 (1995), available in (visited May 9, 2000) 〈http://www.hhh.umn.edu/centers/slp/conpric/cpits.htm〉; SMALL ET AL., supra note 21, at 87; FEDERAL HIGHWAY ADMIN., U.S. DEP'T OF TRANSP., REPORT ON THE CONGESTION PRICING PILOT PROGRAM, A REPORT TO THE SENATE COMM. ON ENV. & PUB. WORKS & HOUSE COMM. ON TRANSPORTATION & INFRASTRUCTURE 14 (1996) ("Key concerns . . . included the view that low-income persons would be adversely affected by congestion pricing because they have fewer opportunities to change time-of-travel or mode of travel due to inflexibility of work schedules, lack of service by alternative modes, or the need to use an automobile to meet several trip purposes in a single trip (e.g., work, child care, shopping)."); Komanoff, supra note 22, at 154; Wahrman, supra note 24, at 205 ("If one assumes that lower-income users are more sensitive to price increases than higher-income users, the concern would be that lower-income users would bear the brunt of higher peak prices and 'only Lexus owners' would be cruising through a peak-priced roadway."); Dave Addis, Commentary, Rush-Hour Roulette: This Lane for the Affluent, That Lane for the Working Stiffs, VIRGINIAN-PILOT & LEDGER STAR (Norfolk, Va.), Aug. 16, 1998, at J1, available in 1998 WL 15060622; Alice Reid, A HOT Alternative to the Slow Lane?, WASH. POST, Mar. 19, 1998, at B1 ("[C]ritics said HOT lanes would be 'Lexus Lanes,' used only by those who could afford them. Statistics collected on road use . . . show that commuters making more than $60,000 a year are twice as likely to use HOT lanes as those who make less than $40,000 a year."); Ed Vulliamy, Private View: First-Class Lane for Fat Cats Makes an Ass of LA Law, GUARDIAN (London), Dec. 6, 1997, at 20, available in 1997 WL 14745391.
79. See, e.g., LEE W. MUNNICH, JR., ET AL., INSTITUTIONAL AND POLITICAL ISSUES IN CONGESTION PRICING: NEW MODELS FOR FEDERAL, STATE, AND LOCAL COOPERATION IN INFRASTRUCTURE INVESTMENT 6 (1995), available in (visited May 9, 2000) 〈http://www.hhh.umn.edu/centers/slp/conpric/cpits.htm〉; SMALL ET AL., supra note 21, at 87; FEDERAL HIGHWAY ADMIN., U.S. DEP'T OF TRANSP., REPORT ON THE CONGESTION PRICING PILOT PROGRAM, A REPORT TO THE SENATE COMM. ON ENV. & PUB. WORKS & HOUSE COMM. ON TRANSPORTATION & INFRASTRUCTURE 14 (1996) ("Key concerns . . . included the view that low-income persons would be adversely affected by congestion pricing because they have fewer opportunities to change time-of-travel or mode of travel due to inflexibility of work schedules, lack of service by alternative modes, or the need to use an automobile to meet several trip purposes in a single trip (e.g., work, child care, shopping)."); Komanoff, supra note 22, at 154; Wahrman, supra note 24, at 205 ("If one assumes that lower-income users are more sensitive to price increases than higher-income users, the concern would be that lower-income users would bear the brunt of higher peak prices and 'only Lexus owners' would be cruising through a peak-priced roadway."); Dave Addis, Commentary, Rush-Hour Roulette: This Lane for the Affluent, That Lane for the Working Stiffs, VIRGINIAN-PILOT & LEDGER STAR (Norfolk, Va.), Aug. 16, 1998, at J1, available in 1998 WL 15060622; Alice Reid, A HOT Alternative to the Slow Lane?, WASH. POST, Mar. 19, 1998, at B1 ("[C]ritics said HOT lanes would be 'Lexus Lanes,' used only by those who could afford them. Statistics collected on road use . . . show that commuters making more than $60,000 a year are twice as likely to use HOT lanes as those who make less than $40,000 a year."); Ed Vulliamy, Private View: First-Class Lane for Fat Cats Makes an Ass of LA Law, GUARDIAN (London), Dec. 6, 1997, at 20, available in 1997 WL 14745391.
80. See, e.g., LEE W. MUNNICH, JR., ET AL., INSTITUTIONAL AND POLITICAL ISSUES IN CONGESTION PRICING: NEW MODELS FOR FEDERAL, STATE, AND LOCAL COOPERATION IN INFRASTRUCTURE INVESTMENT 6 (1995), available in (visited May 9, 2000) 〈http://www.hhh.umn.edu/centers/slp/conpric/cpits.htm〉; SMALL ET AL., supra note 21, at 87; FEDERAL HIGHWAY ADMIN., U.S. DEP'T OF TRANSP., REPORT ON THE CONGESTION PRICING PILOT PROGRAM, A REPORT TO THE SENATE COMM. ON ENV. & PUB. WORKS & HOUSE COMM. ON TRANSPORTATION & INFRASTRUCTURE 14 (1996) ("Key concerns . . . included the view that low-income persons would be adversely affected by congestion pricing because they have fewer opportunities to change time-of-travel or mode of travel due to inflexibility of work schedules, lack of service by alternative modes, or the need to use an automobile to meet several trip purposes in a single trip (e.g., work, child care, shopping)."); Komanoff, supra note 22, at 154; Wahrman, supra note 24, at 205 ("If one assumes that lower-income users are more sensitive to price increases than higher-income users, the concern would be that lower-income users would bear the brunt of higher peak prices and 'only Lexus owners' would be cruising through a peak-priced roadway."); Dave Addis, Commentary, Rush-Hour Roulette: This Lane for the Affluent, That Lane for the Working Stiffs, VIRGINIAN-PILOT & LEDGER STAR (Norfolk, Va.), Aug. 16, 1998, at J1, available in 1998 WL 15060622; Alice Reid, A HOT Alternative to the Slow Lane?, WASH. POST, Mar. 19, 1998, at B1 ("[C]ritics said HOT lanes would be 'Lexus Lanes,' used only by those who could afford them. Statistics collected on road use . . . show that commuters making more than $60,000 a year are twice as likely to use HOT lanes as those who make less than $40,000 a year."); Ed Vulliamy, Private View: First-Class Lane for Fat Cats Makes an Ass of LA Law, GUARDIAN (London), Dec. 6, 1997, at 20, available in 1997 WL 14745391.
81. See, e.g., LEE W. MUNNICH, JR., ET AL., INSTITUTIONAL AND POLITICAL ISSUES IN CONGESTION PRICING: NEW MODELS FOR FEDERAL, STATE, AND LOCAL COOPERATION IN INFRASTRUCTURE INVESTMENT 6 (1995), available in (visited May 9, 2000) 〈http://www.hhh.umn.edu/centers/slp/conpric/cpits.htm〉; SMALL ET AL., supra note 21, at 87; FEDERAL HIGHWAY ADMIN., U.S. DEP'T OF TRANSP., REPORT ON THE CONGESTION PRICING PILOT PROGRAM, A REPORT TO THE SENATE COMM. ON ENV. & PUB. WORKS & HOUSE COMM. ON TRANSPORTATION & INFRASTRUCTURE 14 (1996) ("Key concerns . . . included the view that low-income persons would be adversely affected by congestion pricing because they have fewer opportunities to change time-of-travel or mode of travel due to inflexibility of work schedules, lack of service by alternative modes, or the need to use an automobile to meet several trip purposes in a single trip (e.g., work, child care, shopping)."); Komanoff, supra note 22, at 154; Wahrman, supra note 24, at 205 ("If one assumes that lower-income users are more sensitive to price increases than higher-income users, the concern would be that lower-income users would bear the brunt of higher peak prices and 'only Lexus owners' would be cruising through a peak-priced roadway."); Dave Addis, Commentary, Rush-Hour Roulette: This Lane for the Affluent, That Lane for the Working Stiffs, VIRGINIAN-PILOT & LEDGER STAR (Norfolk, Va.), Aug. 16, 1998, at J1, available in 1998 WL 15060622; Alice Reid, A HOT Alternative to the Slow Lane?, WASH. POST, Mar. 19, 1998, at B1 ("[C]ritics said HOT lanes would be 'Lexus Lanes,' used only by those who could afford them. Statistics collected on road use . . . show that commuters making more than $60,000 a year are twice as likely to use HOT lanes as those who make less than $40,000 a year."); Ed Vulliamy, Private View: First-Class Lane for Fat Cats Makes an Ass of LA Law, GUARDIAN (London), Dec. 6, 1997, at 20, available in 1997 WL 14745391.
82. Jones, supra note 27, at 269.
83. See KAIN, supra note 14, at 7; SMALL ET AL., supra note 21, at 96-97.
84. Of course, the high-income toll payers are perhaps better thought of as beneficiaries of the program, since they are presumably receiving a benefit in the form of time savings that exceeds the toll amounts they must pay.
85. Cf. MUNNICH ET AL., supra note 68, at 16 ("The driver is much more likely to be supportive if the toll is seen as buying a quicker trip, better transit or other alternatives, a better environment[,] better neighborhoods.").
86. See id. at 2; see also FEDERAL HIGHWAY ADMIN., supra note 68, at 25 ("If adopted in congested metropolitan areas nationwide, congestion pricing could result in net economic savings in terms of time savings and reduced demand for new capacity totaling $5 billion to $11 billion annually.").
87. See FREUND & MARTIN, supra note 15, at 49; Komanoff, supra note 22, at 154.
88. See WALTERS, supra note 40, at 218 ("The combination of tollway and free road therefore provides a superior 'mix' of road services than simply one type of road service on one highway. Each motorist can choose the service appropriate to his circumstances.").
89. The short-run/long-run distinction is particularly appropriate whenever free roadway lanes are discussed because of the "law of highway congestion," which holds that latent demand for congested roads always exists among motorists who would drive but for the inhibiting effects of congestion. SMALL, supra note 20, at 113. Thus, in the long run, building more roads will often simply bring more cars to use the roads, resulting in no net decrease in congestion. For a more detailed discussion of this phenomenon, see generally ANTHONY DOWNS, STUCK IN TRAFFIC: COPING WITH PEAK-HOUR TRAFFIC CONGESTION (1992).
90. Wahrman, supra note 24, at 204; see MUNNICH ET AL., supra note 68, at 6 ("In Houston many participants felt that Houstonians . . . have already paid for the roads, making new tolls unpopular."); SMALL ET AL., supra note 21, at 87 ("Travel is widely regarded as a basic right. People who mistrust governments may regard congestion pricing as a sinister form of tax increase."); Jones, supra note 27, at 269 ("The urban road network (unlike motorways) is implicitly viewed as a general purpose public space, which all are free to share. With the encroachment of the market on other areas that were previously in the public domain . . . it represents one of a diminishing number of situations where people are treated equally.").
91. See generally Daniel Kahneman et al., The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. ECON. PERSPS. 193 (1991) (reviewing the loss aversion literature).
92. See Carl B. Williams, Lessons from Road Privatizaion Experience, in PRIVATIZING TRANSPORTATION SYSTEMS, supra note 21, at 249, 254 ("In the United States, a new toll highway presents no such problem, but establishing tolls to recover the cost of resurfacing a previously untolled highway will engender considerable resentment.").
93. See Robert Krol, When Freeways Take Their Toll: Low Prices and High Demand Equal a Shortage, Gridlock in the Case of Roads, L. A. TIMES, Mar. 21, 1999, at B17 (noting a 17-point rise, from 38% to 55%, when Angelinos are polled with respect to charging tolls for existing roads versus new roads as a means of easing congestion); cf. Oren, supra note 26, at 307-08 (noting that the political difficulties involved in converting general purpose lanes into carpool lanes are lessened when new carpool lanes are built).
94. See SAMUEL, supra note 26, at 29 (noting that fully automated toll collection has been implemented successfully in Toronto); SMALL, supra note 20, at 111 ("Hong Kong conducted an elaborate and highly successful field test of electronic technology for collecting congestion fees.").
95. See J.R. MEYER ET AL., THE URBAN TRANSPORTATION PROBLEM 325 (1966).
96. See infra note 186.
97. See generally WILBUR SMITH ASSOCS., PROJECT CONCEPT PLAN-B: FULL OPERATIONS IMPLEMENTATION 3-9 (1997), available in (visited May 16, 2000) 〈http://www.sandag.cog.ca. us/data_services/fastrak/pdfs/task-1a.pdf〉 (describing the potential effectiveness of such a system in San Diego).
98. See SMALL ET AL., supra note 21, at 89; see also Small & Gomez-Ibañez, supra note 64, at 216 (noting that collection costs from the Singapore congestion-pricing experiment amounted to 11% of the revenue collected).
99. See, e.g., SMALL ET AL., supra note 21, at 87-88; Wahrman, supra note 24, at 204. The metaphor used by privacy advocates is the cheating husband whose adultery is discovered by a spouse who sees his monthly toll road bill.
100. In theory, the system could even be set up so that whenever a car that had been reported stolen passed underneath a highway sensor, local law-enforcement officials would be alerted immediately.
101. For a thorough discussion of LoJack and its impressive theft-reducing effects for car owners, see Ian Ayres & Steven D. Levitt, Measuring Positive Externalities from Unobservable Victim Precaution: An Empirical Analysis ofLojack, 113 Q.J. ECON. 43 (1998). LoJack is a registered trademark of the LoJack Corporation.
102. Vickrey, supra note 58, at 233.
103. See SMALL ET AL., supra note 21, at 87-88.
104. See Timothy D. Hall, Congestion Pricing and Road Investment, in ROAD PRICING, supra note 27, at 39, 40-41.
105. 23 U.S.C. §§ 100-501 (1994).
106. See, e.g., id. § 134(g)(2)(B), amended by Pub. L. No. 105-178 § 1203(g)(3) (codified as amended at 23 U.S.C.A. § 134(g)(2)(B) (West 1998)) (removing the explicit reference to congestion pricing)).
107. See Wahrman, supra note 24, at 188 (noting that $31 million had been spent on such programs as of 1998); see also FEDERAL HIGHWAY ADMIN., supra note 62, at 8 ("[C]ongestion pricing has received serious consideration by transportation policy makers in at least 17 states over the past 6 years [since the ISTEA's enactment].").
108. See JANUSZ SUPERNAK ET AL., I-15 CONGESTION PRICING PROJECT MONITORING AND EVALUATION SERVICES, PHASE I OVERALL REPORT 6 (1999), available in (visited May 16, 2000) 〈http://www.sandag.cog.ca.us/data_services/fastrak/pdfs/i-15.pdf〉.
109. See ERIC N. SCHREFFLER ET AL., PHASE I IMPLEMENTATION PROCEDURES, POLICIES, AGREEMENTS, AND BARRIERS 2 (1998), available in (visited May 16, 2000) 〈http://www.sandag.cog.ca.us/data_services/fastrak/pdfs/task-3.3.1. pdf〉.
110. See MUNNICH ET AL., supra note 68, at 18 tbl.7.
111. Among major metropolitan areas in the United States experiencing significant traffic congestion, San Diego easily posted the highest increases in congestion during the 1982-1988 period. In that brief time span, congestion in San Diego increased by 45%. The next highest increase experienced by a metropolitan area during the same period was in the San Francisco Bay region, which experienced a 32% increase. See KAIN, supra note 14, at 24 tbl.4.
112. See SUPERNAK ET AL., supra note 95, at 5.
113. See Wahrman, supra note 24, at 201.
114. See id. According to 1990 Census data, 12.8% of San Diego's drivers carpooled to work, while 70.7% drove to work alone. See U.S. Census Bureau, Travel to Work Characteristics for the 50 Largest Cities by Population in the United States (visited May 11, 2000) 〈http://www.census.gov/population/socdemo/journey/city.txt〉.
115. See Wahrman, supra note 24, at 10. A recent report prepared for SANDAG presents the data: Over the last 10 years, the total number of persons travelling in the I-15 corridor during the a.m. peak period increased by 31 percent from 32,860 in 1988 to 42,977 in 1997. This increase in persons carried through the I-15 corridor is due to the significant increase in the HOV population in the corridor as well as improved utilization of the I-15 Express Lanes. SUPERNAK ET AL., supra note 95, at 13.
116. See Small & Gomez-Ibañez, supra note 64, at 230-31.
117. See SCHREFFLER ET AL., supra note 96, at 4, 9.
118. See GODBE RESEARCH & ANALYSIS, Focus GROUPS OF I-15 COMMUTERS 5 (1997), available in (visited May 16, 2000) 〈http://www.sandag.cog.ca.us/data_services/fastrak/pdfs/ godbe.pdf〉.
119. See JACQUELINE GOLOB ASSOCS., PHASE I ACCEPTANCE OF THE PROJECT AND THE PRICING CONCEPT 4 (1998), available in (visited May 16, 2000) 〈http://www.sandag.cog.ca. us/data_services/fastrak/pdfs/acceptance.pdf〉.
120. Actually, the lanes are only open during the commute hours on weekdays, so "unlimited" use is perhaps something of a misnomer. See I-15 FasTrak Online, Frequently Asked Questions (visited May 10, 2000) 〈http://www.sandag.cog.ca.us/data_services/fastrak/ faq.html〉.
121. Transportation planners refer to toll lanes where HOVs are exempted from the toll as HOT lanes, which presumably stands for "High Occupancy Toll" lanes.
122. See WILBUR SMITH ASSOCS., supra note 84, at 2-3.
123. Telephone Interview with Sharon Gordon, SANDAG Asst. Project Manager, FasTrak Program (Feb. 11, 1999).
124. See I-15 EXPRESS NEWS (SANDAG), Summer 1998, at 3, available in (visited May 17, 2000) 〈http://www.sandag.cog.ca.us/data_services/fastrak/pdfs/sum98.pdf〉. The tolls range between $0.50 and $8.00 per use, but will only exceed $4.00 in the event of "severe traffic congestion." I-15 FasTrak Online, Toll Schedule and Information (visited May 10, 2000) 〈http://www.sandag.cog.ca.us/data_services/fastrak/schedule.html〉.
125. See I-15 FasTrak Online, What's New (visited May 10, 2000) 〈http://www.sandag.cog. ca.us/data_services/fastrak/press.html〉.
126. See JACQUELINE GOLOB ASSOCS., supra note 106, at 7.
127. See SUPERNAK ET AL., supra note 95, at 12.
128. See id.
129. See id. at 14-15.
130. See GODBE RESEARCH & ANALYSIS, supra note 37, at 9; see also Federal Highway Admin., U.S. Dep't of Transp., Regional Congestion Pricing Workshop (visited May 10, 2000) 〈http://www.hhh.umn.edu/centers/slp/conpric/tampa.htm〉 (reporting an average time savings of 10 to 20 minutes).
131. See JACQUELINE GOLOB ET AL., PHASE I ATTITUDINAL PANEL STUDY 94 (1998), available in (visited May 17, 2000) 〈http://www.sandag.cog.ca.us/data_services/fastrak/pdfs/ task-3.2.3.pdf〉.
132. See SUPERNAK ET AL., supra note 95, at 15. Annual estimated delay costs
133. See GOLOB ET AL., supra note 118, at 54 .
134. See, e.g., Small & Gomez-Ibañez, supra note 64, at 231 ("Environmentalists sometimes oppose HOT lanes on the grounds that they might dilute the incentive to carpool.").
135. See GOLOB ET AL., supra note 118, at 46.
136. See GODBE RESEARCH & ANALYSIS, supra note 37, at 13. But cf. JACQUELINE GOLOB ASSOCS., supra note 106, at 10. Most importantly, there is no evidence of perceived negative impacts of the program on carpoolers, which is contrary to the fears expressed by I-15 Express Lanes users in the pre-project period. Free-flow conditions were maintained in the Express Lanes during Phase I, which likely resulted in the less negative views by carpoolers. Id.
137. See, e.g., JANUSZ SUPERNAK ET AL., PHASE I MEDIA RELATIONS AND COVERAGE 5 (1998), available in (visited May 23, 2000) 〈http://www.sandag.cog.ca.us/data_services/fast rak/pdfs/media.pdf〉 ("[S]ome carpool users on I-15 . . . felt disappointed that officials have abandoned the original idea to allow only carpoolers on the Express Lanes. One such carpooler asked: 'What happened to the goal of reduced pollution and conserving energy?'"); WILBUR SMITH ASSOCS., supra note 50, at 8 ("Carpoolers may feel entitled to the exclusive use of the Express Lanes and resent their use by others who have not adjusted their lifestyles or made the decision and switched to rideshare."); Richard Simon, As Toll Roads Gain Toehold in Southland, Critics Fear "Highway Robbery", L.A. TIMES, Sept. 15, 1995, at B2. "'If you allow people to buy into the [high-occupancy-vehicle] lane, you defeat the purpose of having HOV lanes,'" which is to reduce smog . . . .") (quoting State Sen. Tom Hayden).
138. See, e.g., JANUSZ SUPERNAK ET AL., PHASE I MEDIA RELATIONS AND COVERAGE 5 (1998), available in (visited May 23, 2000) 〈http://www.sandag.cog.ca.us/data_services/fast rak/pdfs/media.pdf〉 ("[S]ome carpool users on I-15 . . . felt disappointed that officials have abandoned the original idea to allow only carpoolers on the Express Lanes. One such carpooler asked: 'What happened to the goal of reduced pollution and conserving energy?'"); WILBUR SMITH ASSOCS., supra note 50, at 8 ("Carpoolers may feel entitled to the exclusive use of the Express Lanes and resent their use by others who have not adjusted their lifestyles or made the decision and switched to rideshare."); Richard Simon, As Toll Roads Gain Toehold in Southland, Critics Fear "Highway Robbery", L.A. TIMES, Sept. 15, 1995, at B2. "'If you allow people to buy into the [high-occupancy-vehicle] lane, you defeat the purpose of having HOV lanes,'" which is to reduce smog . . . .") (quoting State Sen. Tom Hayden).
139. For a more detailed discussion of this point, see infra text accompanying notes 276-82.