Professor Nicole McConlogue to Publish New Scholarship in Oklahoma Law Review

West Virginia College of Law professor Nicole McConlogue will publish new scholarship in an upcoming issue of the Oklahoma Law Review. The article, titled The Road to Autonomy is available now on SSRN.

From the abstract:

Scholars, activists, and advocates have long identified the “transportation gap” as a significant factor contributing to race- and class-based economic and other disparities. Carlessness correlates closely with race and poverty; meanwhile, widespread disinvestment in public transit results in low-income Black and Brown people suffering a disproportionate lack of access to opportunity and choice in almost every conceivable area of life.

The conversation focusing on correcting the transportation gap has most often proposed that state and local governments solve this problem in one of three ways: 1) by renewing their investment in public transit; 2) by increasing access to shared transit; and 3) by making adaptations to the built environment. This Article will demonstrate that these proposals are all inadequate. Despite their many benefits, none of these solutions provide an equivalent substitute for private car ownership for individuals who need or want it. Thus any solution privileging public approaches to the exclusion of private options is doomed at the outset and will never completely suffice to close the gap.

The thinking that inspires the major public-approach proposals is in line with the current understanding of the constitutional right to travel, which judges and legal scholars contemplate as a negative right blocking undue interference with interstate travel. A right to intrastate travel is not universally recognized, and where it is acknowledged, is also consistently framed as a negative right.

This Article argues that instead, advocates and lawmakers must design solutions that incorporate a positive right to autonomous mobility which allows individuals input and choice in the modes of transportation best suited to them. The low-income, Black, and Brown people stranded in the transportation gap are not well served by top-down, one-size-fits-all solutions. Moreover, the public-approach proposals typically ignore private car ownership as a possible option, or outright discourage it in order to stem the tide of the environmental and infrastructural problems associated with the popularity of driving. This imposes individual burdens to solve societal problems; it yokes the most vulnerable to eliminate problems created by the most powerful.

Instead, we must affirm a positive right to autonomous mobility: to trust individuals to know their own needs, and to meet them, even if those needs include private vehicle ownership. Only when we recognize this right and expand our thinking to include private options can we design creative and principled solutions that have a chance of closing the transportation gap.

Find more of Professor McConlogue's scholarship on SSRN.

A portrait of Professor Nicole McConlogue.  A woman wearing a coral shirt under a black suit jacket.