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Title 2.0: Discrimination Law in a Data-Driven Society
More than a quarter century after civil rights activists pioneered America’s first ridesharing network, the connections between transportation, innovation, and discrimination are again on full display. Industry leaders such as Uber, Amazon, and Waze have garnered widespread acclaim for successfully combatting stubbornly persistent barriers to transportation. But alongside this well-deserved praise has come a new set of concerns. Indeed, a growing number of studies have uncovered troubling racial disparities in wait times, ride cancellation rates, and service availability in companies including Uber, Lyft, Task Rabbit, Grubhub, and Amazon Delivery. Surveying the methodologies employed by these studies reveals a subtle, but vitally important, commonality. All of them measure discrimination at a statistical level, not an individual one. As a structural matter, this isn’t coincidental. As America transitions to an increasingly algorithmic society, all signs now suggest we are leaving traditional brick and-mortar establishments behind for a new breed of data-driven ones. Discrimination, in other words, is going digital. And when it does, it will manifest itself—almost by definition—at a macroscopic scale. Why does this matter? Because not all of our civil rights laws cognize statistically-based discrimination claims. And as it so happens, Title II could be among them. This piece discusses the implications of this doctrinal uncertainty in a world where statistically-based claims are likely to be pressed against data-driven establishments with increasing regularity. Its goals are twofold. First, it seeks to build upon adjacent scholarship by fleshing out the specific structural features of emerging business models that will make Title II’s cognizance of “disparate effect” claims so urgent. In doing so, it argues that it is not the “platform economy,” per se, that poses an existential threat to the statute but something deeper. The true threat, to borrow Lawrence Lessig’s framing, is architectural in nature. It is the algorithms underlying “platform economy businesses” that are of greatest doctrinal concern—regardless of whether such businesses operate inside the platform economy or outside it. Second, this essay joins others in calling for policy reforms focused on modernizing our civil rights canon. It argues that our transition from the “Internet Society” to the “Algorithmic Society” will demand that Title II receive a doctrinal update. If it is to remain relevant in the years and decades ahead, Title II must become Title 2.0.The Deterrence Case for Comprehensive Automaker Enterprise Liability
This Article lays out the potential (at this point purely theoretical) deterrence benefits of replacing our current auto tort regime (including auto products liability law, driver-based negligence claims, and auto no-fault regimes) with a single, comprehensive automaker enterprise liability system. This new regime would apply not only to Level 5 vehicles, but to all automobiles made and sold to be driven on public roads. Because such a system would make automakers unconditionally responsible for the economic losses resulting from any crashes of their vehicles, it would in effect make automakers into auto insurers as well, although such a change will likely lead to some restructuring in how automobiles are insured and sold. Or so I will argue.The Future of Law and Mobility
With the launch of the new Journal of Law and Mobility, the University of Michigan is recognizing the transformative impact of new transportation and mobility technologies, from cars, to trucks, to pedestrians, to drones. The coming transition towards intelligent, automated, and connected mobility systems will transform not only the way people and goods move about, but also the way human safety, privacy, and security are protected, cities are organized, machines and people are connected, and the public and private spheres are defined. Law will be at the center of these transformations, as it always is. There has already been a good deal of thinking about the ways that law must adapt to make connected and automated mobility feasible in areas like tort liability, insurance, federal preemption, and data privacy. But it is also not too early to begin pondering the many implications for law and regulation arising from the technology’s spillover effects as it begins to permeate society. For better or worse, connected and automated mobility will disrupt legal practices and concepts in a variety of ways additional to the obvious “regulation of the car.” Policing practices and Fourth Amendment law, now so heavily centered on routine automobile stops, will of necessity require reconsideration. Notions of ownership of physical property (i.e., an automobile) and data (i.e., accident records) will be challenged by the automated sharing economy. And the economic and regulatory structure of the transportation network will have to be reconsidered as mobility transitions from a largely individualistic model of drivers in their own cars pursuing their own ends within the confines of general rules of the road to a model in which shared and interconnected vehicles make collective decisions to optimize the system’s performance. In these and many other ways, the coming mobility revolution will challenge existing legal concepts and practices with implications far beyond the “cool new gadget of driverless cars.” Despite the great importance of the coming mobility revolution, the case for a field of study in “law and mobility” is not obvious. In this inaugural essay for the Journal of Law and Mobility, I shall endeavor briefly to make that case.