The FISA news is not good – the Senate has approved a revision that drastically reduces judicial oversight [CDT] and is riddled with “loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it” [ArsTechnica].
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Disheartened, I’d rather write about a nice article by Warren Jefferson Davis in the first number of an ambitious (and short-lived) 1930s journal called the Air Law Review. (Sorry that I can’t link directly to the journal – ask your local librarian.) Davis was, among other things, grappling with the question whether a plane hired for ad hoc, casual, private joyrides should be treated as a common carrier. (Answer: No.) Along the way, he carefully explored the general question of common carriage.
[T]o constitute a common carrier the business as such must be regular and customary in its character, and not casual only, and must be carried on as a business and be of such a general and public nature that the carrier is bound to convey goods for all persons indifferently who offer payment for carriage.
… [citing cases] “The real test whether a man is a common carrier, whether by land or water, therefore, really is whether he had held out that he will, so long as he has room, carry for hire the goods of every person who will bring goods to him to be carried. The test is not whether he is carrying as a public employment or whether he carries to a fixed place, but whether he holds out, either expressly or by a course of conduct, that he will carry for hire, so long as he has room, the goods of all persons indifferently who send him goods to be carried.”
This framework isn’t based on necessity, or on monopoly status – it’s based on “holding out,” or acting, as if you’re available to everyone to carry their goods (or, potentially, communications).
Your World. Delivered.
–AT&T slogan, introduced Dec. 2005, following merger with SBC Communications, Inc.
It’s the Network.
–Verizon Wireless slogan, introduced 2005.
Hmm. Sounds like transport is available, doesn’t it?
Sounds a lot like one of the six criteria in Tunkl, the California Supreme Court case balancing test on whether or not to allow waiver of negligence liability.
Here’s more information about the Air Law Review from a 1930′s Time article – quoting in full.
http://www.time.com/time/magazine/article/0,9171,738504,00.html
New York University bounded out of its academic bed last week with a new, learned periodical, the Air Law Review. It was the first U. S. institution to establish a full school of Aeronautics with help of the Daniel Guggenheim Fund for the Promotion of Aeronautics. Therefore it considered itself having a preemption on academic Aeronautics. Last August N. Y. U. roused itself when Northwestern University at Chicago set up an Air Law Institute on the model of the Koenigsberg Institut für Luftrecht, established in 1924 as the world pioneer. N. Y. U. promised itself a similar institute for next autumn. University of Southern California’s similar decision seemed a murmur from across the continent.
Then Northwestern’s Air Law Institute announced that it would publish an Air Law Review. That was nightmare to N. Y. U. whose Law School Professors had worked long and diligently on such a review. The Law Professors hustled together manuscripts and produced the first U. S. Air Law Review. It appeared last week.
Editor is Alison Reppy, Professor of Law at N. Y. U. Advisors include, besides law teachers, practicing aviation and radio attorneys—John William Davis, William Patterson MacCracken, Mabel Walker Willebrandt, Warren Jefferson Davis. Also William Joseph (“Wild Bill”) Donovan, onetime (1925-28) Assistant to the Attorney-General; Manton Davis, General Attorney for Radio Corp. of America; Louis G. Caldwell, onetime Chairman of the Federal Radio Commission.
This second group serves because the Air Law Review gives briefs, reviews, interpretations and general surveys of laws pertaining to every human activity above the earth. Though designed primarily to discuss and report radio and aviation law. within its purview come all things which pertain to the air—air rights for buildings above railroad tracks, the migration of fowl, the calling of hogs at a state line.
If a newspaper “holds its self out” by offering to carry classified ads from the public, does that make the newspaper a “common carrier?” Would the rules of common carriage only apply to a portion of the newspaper, such as the classified ads? Of if any part of the newspaper “holds its self out to the public,” does that mean the entire newspaper must be treated as a “common carrier” including editorial decisions?