Quoted in Businessweek on Uber Regulation

I’m quoted in this Businessweek story asking whether Uber can deny service to people that it dislikes. The answer isn’t completely clear yet, and depends on whether Uber’s a common carrier — a carrier like an airline, bus, taxicab service, etc. that holds its services out to the general public. A regulatory agency in Baltimore found that Uber was a common carrier in September 2014,  but so far no other has to my knowledge. I suspect this is something that regulators and courts will be working out for a while.

Farrell & Leong: “Gender Diversity and Same-Sex Marriage”

My coauthored essay with my University of Denver colleague Ian Farrell, “Gender Diversity and Same Sex Marriage,” is just out in the Columbia Law Review Sidebar! Particularly given the recent Sixth Circuit same-sex marriage decision, I’m happy to have our thoughts on one aspect of the same-sex marriage debate out in final form. The editors at Columbia were wonderful to work with and we were impressed with the speedy Sidebar publishing timeline — less than three months from acceptance to publication.



This Year’s Derrick Bell and Clyde Ferguson Awards

Congratulations to my University of Denver Law colleague César Cuauhtémoc García Hernández for his selection as the recipient of this year’s Derrick A. Bell, Jr. Award!

As some readers may know, the The Derrick A. Bell, Jr. Award is awarded annually by the AALS Minority Groups section. It’s named in honor of Professor Derrick A. Bell, Jr.-the first tenured African-American on the Harvard Law School faculty. The Award honors a junior faculty member who, through activism, mentoring, colleagueship, teaching and scholarship, has made an extraordinary contribution to legal education, the legal system or social justice. Continue reading

What I Read Last Week

A few recommendations I found around the Internet last week:

  • Martha Nussbaum, Haterz Gonna Hate?: Nussbaum weaves together her own experience with online harassment with a thoughtful review of Danielle Citron’s book Hate Crimes in Cyberspace, which I’ve mentioned before. I particularly appreciate Nussbaum’s acknowledgment of certain First Amendment realities: “Nobody is really a free-speech absolutist: bribery, perjury, criminal solicitation, extortion and the other types of speech I’ve mentioned are not supported even by zealous speech libertarians. More to the point, US constitutional law is not absolutist, and sensible proposals of Citron’s sort are no threat to cherished values.”

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“Improving Rights” and Originalism’s Alternatives

This afternoon I’m looking forward to discussing my article “Improving Rights,” published in the Virginia Law Review earlier this year, with the students in a class called “Originalism’s Alternatives,” taught by Adam Samaha (NYU). The class is about constitutional interpretation and decision, and covers different varieties of originalism as well as alternatives to originalism, along with other topics such as authority theories and judicial behavior. I’m one of about half a dozen law professors who are discussing their recent scholarship with the class.

I’ll be Skyping into the seminar from Denver, which strikes me as a really efficient and creative way to bring guest speakers into the class using technology. It makes the time commitment much less on the part of the speaker, which might make the difference for some speakers between being able to participate and not being able to participate. It reduces the possibility of logistical obstacles — for example, I well remember the frustration of being snowbound in Denver and not being able to get to a class at another school where I was hoping to present my work. And of course it saves a lot of money, which is always a good thing. Of course, Skype isn’t a true substitute for in-person interaction, but it seems to me that in many instances the benefits will make up for the costs. Thanks to Adam for inviting me.

Garden: “Meta Rights”

When are people not only guaranteed the protection of a particular constitutional right, but also notice of the existence of that right and/or help availing themselves of that constitutional right? Charlotte Garden (U Seattle; Litigation Director of Korematsu Center for Law & Equality) takes up this question in a great new piece, “Meta Rights,” just out in the Fordham Law Review. An excerpt from the abstract: Continue reading

New Salon.com Piece: “The Sharing Economy Has A Race Problem”

I have a piece in Salon today about racial bias in the sharing economy. How can we prevent the race discrimination that affects businesses in the traditional economy from infecting the new sharing economy as well? The Salon piece gestures at a larger project I’m currently working on that will probably take the form of a law review article, tentatively titled “The New Public Accommodations,” that will look at how we can prevent private-actor race discrimination on within the sharing economy. Continue reading

Call for Items for New Law Professors Section

I received this call for responses from Jennifer Carter-Johnson (Michigan State). Please feel free to respond directly to Jenny, and to circulate broadly:

I am working on the newsletter for the New Law Professors Section.  If you’d like to write a piece for that, I’d love to hear from you.  BUT even if you don’t want to commit to a full article, I’m planning an advice section with short comments.  If you could answer one or both of the questions below in 1-3 sentences, I’ll try to include as many responses as possible in the newsletter.  I am happy to make your comments anonymous if you prefer, just let me know.

1.  What surprised you the most about the tenure process?   OR What do you wish you had known before going through the tenure process?

2.  How do you structure your writing schedule and keep yourself motivated in light of all of your other obligations?

Return any answers to me at Jennifer Carter-Johnson, jcj@law.msu.edu by November 14th.  Feel free to share this request for responses broadly.

Lakier: The Invention of Low Value Speech

I just finished reading this fascinating paper by Genevieve Lakier (U. Chicago Bigelow), which reveals that the concept of low-value speech (which receives only weak First Amendment protection) and high-value speech (which receives full First Amendment protection) is a historically-created myth. The reality is that, at the founding and through the nineteenth century, both categories were viewed as entitled to some protection and subject to some regulation. Continue reading