Off the Rails: Getting Common Carrier Doctrine Back on its Twin Tracks
Modern common carrier doctrine lacks a coherent framework. Courts and scholars have called its parameters and justifications a mystery and proposed numerous theories for identifying a common carrier. Their attempts to establish a decisive rule suffer one of two problems. Some seek a singular solution where none exists. Others create a list of relevant factors, then treat the analysis as a balancing test. But the doctrine developed neither with a single rule nor according to a multi-factor balancing test. It evolved along two clear and separate tracks. The solution to the common carrier problem is to return the doctrine to these twin tracks. Before the Fourteenth Amendment was ratified, two distinct classes of business were subject to common carrier regulation. Each is identified by a different test, subject to a slightly different regulation regime, and regulated for a different reason. The two-track theory explains why the “holding out” standard developed for common carriers, and why it should only be used in limited contexts. It explains why companies “affected with a public interest” were historically regulated as common carriers, but only if the phrase is narrowly interpreted. And it explains how the “market power” test for common carriers came into being and why it should be discarded. The two-track theory also helps resolve recent questions about whether new technologies are common carriers. The most pressing question asks whether social media platforms should be included. They should not. The platforms fit neither historical test for a common carrier, and regulating them as common carriers would undermine the function that each track developed to serve. A new definition of “common carrier” that includes the platforms would further distort the historical meaning of the term and the historical purposes of the doctrine.
Cite as: Teddy Ray, Off the Rails: Getting Common Carrier Doctrine Back on Its Twin Tracks, 18 N.Y.U. J.L. & Liberty 1 (2024).