by Robert Gressis
Imagine that the rules of the road were the following:
 In general, you’re allowed to drive wherever you want, though some places are off-limits, either because they’re not public roads, or because you don’t have money for the toll, or because they’re temporarily closed.
 Similarly, you must follow the traffic laws wherever you drive — speed limits, which side of the road to drive on, when you can and can’t turn on red, etc.
 If you violate the rules of the road, ignorance of the law is no excuse.
 If you get into a car accident, the person who is most at fault has to pay the most (or perhaps even all).
So far, so good. These are, to the best of my knowledge, the rules of the road that prevail just about everywhere.
But imagine that people became upset with the rules of the road. For one thing, people who are poorer have cars that are less safe, and so, when they get into accidents, they tend to suffer death or injury at a greater degree than rich people. In addition, they can’t afford to get into accidents, so they have to drive significantly more cautiously than rich people. However, because they are poorer, they have generally have less time or ability to fix their cars, so they’re likelier to get into accidents. Finally, the poor are less likely to know the rules of the road, and so are more likely to accidentally break the law and suffer the consequences. Because of these conditions, the fourth rule, though it is facially neutral, actually impacts poor people much harder than richer people. In light of this, imagine that reformers decide to replace the fourth rule with two new ones:
 With regard to car accidents, police no longer try to determine who is at fault. Instead, they look at the drivers who had the collision. Drivers who drive more expensive cars are always more at fault, no matter what happened, and drivers of less expensive cars are less at fault, no matter what happened.
 Sometimes, the drivers of expensive cars would pay most of the damages and the drivers of cheap cars would pay only a modest amount. Or sometimes, the drivers of expensive cars would not only pay all the damage, they would pay for the victim’s hospital bills, pain and suffering, etc.
Rules 5 and 6 have two things going for them. First, they are easy to apply and understand: all you have to do is get a blue book value for each of the cars, and then you can figure out who is at fault, and perhaps even the degree to which she’s at fault. In other words, they are rules that are difficult to be ignorant of (because they’re so simple). Second, there is a prima facie sense of justice to the rules: people who have more expensive cars generally can afford greater costs, while people who have less expensive cars generally can’t, so it’s only fair that the rich drivers should pay more while the poor drivers pay less.
However, if rules 5 and 6 became the rules of the road, then there would be unwelcome and predictable consequences (there would also be some unpredictable consequences; for obvious reasons, I can’t delve into those). To wit:
Rich Drivers’ Behavior
- Drivers of expensive cars would try not to drive their cars, except in areas where the vast majority of the cars had similar values.
- If there were no such areas, then they would probably try to refrain from driving.
- If they couldn’t refrain from driving, they would drive extremely cautiously.
- Alternatively, they would buy cheap cars and drive those, or they would hire someone who owned a cheap car and let him drive them.
Poor Drivers’ Behavior
- Drivers of cheap cars would become significantly less cautious when driving.
- Drivers of cheap cars would prefer to drive in areas with expensive cars.
- Some drivers of cheap cars would seek out expensive cars to hit, in the hopes that they’ll get such a large pay-out that they become rich. (Unless they’re nuts, they would do this as cautiously as they could while still requiring compensation; but remember, some people are nuts, and remember as well that even sober-minded people make mistakes when they’re desperate.)
Car Producers’ Behavior
- The cost of expensive cars would plummet, and the cost of cheap cars would increase.
- Or perhaps game theory – they would reach an unstable equilibrium: the expensive cars’ value would decrease (because they’re now less valuable) but would then increase (because the expensive cars are, after all, better cars) and then decrease, and so on.
- Probably, though, expensive cars would stop being produced in the same way or in the same number:
- Maybe expensive cars would simply stop being produced; after all, why produce a car that will be someone’s target practice or that will constantly have to be in the shop?
- Or maybe they would continue to be produced, but simply would become significantly hardier.
- Most likely, I think, they would continue to be produced, but in such a way that it becomes impossible to tell cheap cars from expensive cars. To an outside observer, every car would look like a beater, but on the inside, some would have the finest German engineering.
- In addition, it’s quite possible that a market would develop to produce different cheap cars, for instance:
- Cheap cars that are both extra safe to their drivers (at least such that they don’t cause death or permanent injury) and extra likely to cause terrible damage. The producers would be incentivized to make cheap cars that are (relatively) safe but fragile. Or maybe …
- Cheap cars that can detect which cheap-looking cars are really expensive, or how to hit an expensive car in such a way as to maximize damages.
If the rules of the road were put in place precisely for the two reasons I gave above –- because they’re easy to apply, and because they advantage previously disadvantaged people -– then the drafters of these rules would not be pleased with either rich drivers’ or car producers’ behavior. So, they would probably try to institute new rules to curb rich drivers’ behavior.
For example, they might say that rich drivers can’t simply choose not to drive anymore: perhaps they would insist that they drive at least once a day. After all, we need rich people to get to their jobs as well. Or they wouldn’t want rich drivers to set up places where only rich drivers could drive. Such a situation would ghettoize the poor cars’ drivers, cutting them off from the services that rich drivers patronize. Or maybe they would forbid rich drivers hiring poor people to drive them. Or maybe they would require all cars to have their price plastered on the side so that cheap-looking expensive cars are easily identifiable (which would lead to a black market in fake price tags).
On the other hand, advocates of rich drivers wouldn’t sit on their hands. They would fight these changes to the rules of the road in whatever way they could. They would point out all the fatalities caused by poor drivers. They would focus on all the cases of poor people intentionally driving recklessly in order to undercut sympathy for the poor drivers, and so on.
In other words, though there are good reasons –- truly! –- to replace rule 4 with rules 5 and 6, there are three gigantic, negative consequences that outweigh eliminating rule 4. First, the inauguration of rules 5 and 6 leads to widescale dissimulation. The rich drivers pretend to drive cheap cars, the poor drivers try to manufacture fake car accidents to make themselves rich, and car manufacturers do what they can to satisfy both parties.
Second, a huge tussle breaks out over what the rules of the road should be. A lot of political and psychological energy gets invested in what the rules of road should be, not to have rules of the road that are safe, but instead to have rules that advantage rich or poor drivers.
Third, and most important, people forget what the point of having roads and cars is. The point is to enable safe, convenient transportation for lots of people. It’s important not to understate this. Yes, getting from point A to point B isn’t sexy, but it’s incredibly important. Think of the massive disruptions in people’s lives if they’re constantly worried about being crashed into or if they’re constantly on the lookout for targets. People need to go places! Yes, some people will be more disadvantaged than others, no matter what the rules are. But, given the point of rules of the road, inequities are less important than having efficient roads. If you have to choose between a system that focuses first and foremost on achieving equity rather than efficiency — at least when it comes to transportation — then what you’ll get is more lying, more fighting, and reduced efficiency, even if you do get more equity. And it’s not even clear that you’ll get more equity.
Of course, no one has talked about changing the rules of the road in this way. But obviously, people have tried to change –- or perhaps have successfully changed –- the rules of discourse. Consider a couple of rules that seem, from my limited vantage point, to be fairly widespread:
Rule I: Intentions don’t matter; consequences do.
Rule I looks a lot like my rule 5. It says that, regardless of what you meant when you said something, if it harms someone (i.e., if it causes offense, or triggers them, or something similar), then you’re at fault.
But of course, matters aren’t so simple. If a progressive offends a bunch of Trump-lovers, their offense is not important. After all, these are people who are not marginalized, but rather in possession of quite a lot of power, and have been for some time. In other words, they’re like the drivers of expensive cars. Even if they were the ones who suffered the accident, they’re at fault. So let’s add a new rule:
Rule C: not all consequences matter equally; the consequences accruing to the relatively marginalized matter more than the consequences accruing to the relatively empowered.
This is somewhat similar to my rule 6: when tempers flare and feelings are hurt, the way to figure out who is at fault — i.e., who should bear the consequences or at least apologize —, you have to figure out who has the more expensive car — i.e., who is less marginalized.
There are good reasons — truly! — to have inaugurated rules I and C. Regarding rule I, it’s harder for more marginalized people to hold more empowered people to account in an argument. Often, the rules of discourse are, arguably, “set” by the powerful, and the powerful, having more resources and energy at their disposal get to know the rules of discourse better than the marginalized. This is one reason to simply look at consequences rather than intent: intent, being invisible, is easy to finesse; consequences, being visible, are not. 
Regarding rule C, the powerful are more able to suffer consequences of an inapposite remark than the weak. If you’re rich, losing your career often means starting a new one. If you’re poor, losing a job often means not making ends meet.
But once you have rules I and C in place, you start to get a lot of dissimulation. You incentivize people to lie about how hurt they are. Moreover, you incentive people to become more easily hurt. If having an egg-shell skull means you receive more compensation from the court of law, having a paper-thin skin means you get more support from the court of public opinion. Similarly, you incentivize powerful people to pretend to be marginalized, or to have inauthentic friendships with marginalized people. And people from majority groups who don’t want either to lie or to suffer try to refrain from talking altogether.
This, of course, leads to new rules, like “silence is violence”: in other words, refraining from discourse is not an option; you have to speak your piece, subject yourself to the new, strict liability domain of discourse, and hope that you don’t accidentally center yourself or marginalize others. But unless you pay attention to the flurry of new pronouncements, you will center yourself; you will marginalize others.
Not surprisingly, this leads to a huge battle over the rules of discourse. Are Jews white? Are Arabs? Are Asians white-adjacent? How have I been marginalized? How have I been traumatized? What counts as marginalization or traumatization anyway? Is there a cancel culture or is it an accountability culture? I better do my research, and I have to pick a side!
And what is the point of discourse, anyway? Well, of course, there is no one point to discourse, just as there is no one point to driving. Some people talk to vent, and some people drive to get away. But there is clearly a main point to discourse, just as there is for driving. The main point of driving is transportation: going from one place to another. The main point of discourse is communication: one person sharing information with another.
And this is hugely important! The more burdensome you make discourse, the more you will make people not want to communicate, except with their intimates. Why talk to strangers when they have good reason and some ability to want to smash you into a thousand pieces?
So, rules I and C, well-intentioned though they may be, have some lamentable consequences: more prevarication, fighting, and wasted energy, and less communication. And it’s not even clear how much more equitable they make things: how much do these rules actually help the marginalized?
I expect they probably do help them a fair bit. But the help goes more to marginalized people who end up in walks of life where discourse is crucial to career success: academia, media, government, management, the arts. Not so much soldiers, manual laborers, truckers, software engineers, doctors, waiters, etc. And it’s not clear that the help that’s given outweighs the social costs.
I am sure that the analogy between the rules of the road and the rules of discourse overlooks things. It is, after all, just an analogy. But the point of the analogy is to exhort us to remember what is the point of what we’re talking about, and to remind us as well that sometimes equity is not to the point.
 That said, matters are in reality not so clear-cut. Sometimes it’s actually pretty possible to notice a person’s intentions. On the other hand, many consequences are invisible –- e.g., when the CDC requires lots of expensive tests before a drug is approved, people don’t see all the people who died as a result of not being able to get the drug, nor do the see the people who would have died if the drug was not good but got approved too easily.