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My Law 2050 energy has been devoted the past month to grading a pile of fabulous papers my students compiled on a broad variety of topics and planning some exciting new developments here at Vanderbilt. More on the latter, later. For now, some observations on several trends in law based on the student papers.
The major writing assignment in the law 2050 class requires students to identify an “inside law” or “outside law” trend and cover it in a blog post, client alert latter, and bar journal article. The purpose is twofold: (1) expose them to writing styles their future employers are likely to expect them to use for professional development and (2) encourage entrepreneurial thinking about how to “jump on” emerging themes and opportunities.
As I have mentioned before, the breadth of “outside law” topics was impressive. Three major themes dominated, however: (1) regulating the so-called sharing economy; (2) weird new technologies; and (3) personal data privacy. Taking them one at a time, this post covers the sharing economy, a snarl of legal issues that ought to keep plenty of lawyers busy for the foreseeable future.
The engine of the sharing economy, no surprise, is the internet and its capacity to link people. Sharing economy companies leverage this capacity to match supply and demand primarily for services, the big three so far being rides (e.g., Uber), rooms (e.g., Airbnb), and odd jobs and errands (e.g., TaskRabbit).
Two opposing narratives have dominated the debate over how to receive the sharing economy. In one, sharing economy companies project themselves as innovative middlemen who merely use smart phone technology to hook up willing service providers with those in need of a ride, place to stay, or broken pipe fixed. In the other narrative, regulated companies in the traditional economy who see the sharing economy as completion accuse its participants of illegally and unfairly skirting rules and regulations running the gamut from licensing to taxes to employment. Which is it? It seems like a little of both to me, which is what has made the sharing economy a regulatory challenge.
The rhetoric of the sharing economy began with its name, because it is not at all about sharing—it’s about charging for services. When ride-share companies ramped up around the nation, for example, they took the position that it was simply about using phones and their smart software to match people who needed a ride with people who for whatever reason felt like driving people around—any exchange of money from passenger to driver was a “donation.” But now with surge pricing and capitalized values in the billions, the sharing economy looks much more like a business model. The other preposterous premise of the sharing economy was that it is quaint and benign, presenting no concerns that should catch the eye of regulation.
The sharing narrative fell apart pretty fast, however, and the rhetoric shifted to fending off the regulatory wolves. Questions raised about the ride-room-errand trio have been so obvious, however, it’s clear the inventors of the sharing economy decided just to go forward without asking permission and wait to see what hit the fan, when, and where. After all, it’s no accident that we regulated rides, rooms, and errands for hire, and for good reason—just check into the history of taxis in major cities in the early 1900s and you’ll find plenty of horror stories. Even a short typology of legal and regulatory issues these new upstarts present is chock full of issues:
- business licensing and taxes: Must Uber or its drivers be licensed as a taxi; must Airbnb or its “landlords” pay hotel taxes
- employment status: Are Uber’s drivers and TaskRabbit’s tasklers independent contractors or employees?; Who payes TaskRabbit’s tasker employment taxes?
- health & safety regulation: Are Airbnb accommodations subject to health regulations and the ADA
- insurance and liability: Who is liable when an Airbnb “tenant” burns down the apartment or an Uber driver assaults a passenger or drives into a building?
- zoning: What if local zoning does not allow hotels in a particular area–can Airbnb operate there?
- private contracts: What is homeowner association bylaws or an apartment lease restrict rentals and sublets?
On the other hand, it’s just as clear that the regulatory system has gone far beyond managing the problems presented by unrestricted ride, room, and errands providers to become part of the problem, protecting the taxis, hotels, and other services industries as much if not more than it protects consumers. Surely the regulated companies do deserve some protection in return for bearing the burden of regulation, such as the fixed rates taxis must charge regardless of demand. But if I can get an Uber driver at a busy downtown location in one minute, have him or her drive me safely back to my reasonably-priced Airbnb apartment I rented for the weekend late the prior week, and get someone over quickly to clean up the place before I turn in the key, what’s wrong with that? It’s hard to get that from the traditional regulated economy. And if the traditional regulated economy isn’t meeting demand, it’s worth taking a step back to ask how to improve the system.
So we have a regulatory conundrum on our hands: consumers love the sharing economy, but want some acceptable level of security and protection; entrenched regulated providers in the traditional economy such as taxis and hotels hate the sharing economy, but can’t deliver its same level of convenience because of regulation; government sees licensing fee and tax revenue slipping away, and can’t please both consumers and the regulated industries.
At the two extremes, one approach would be to unflinchingly apply all the status quo rules of the traditional regulated economy to the sharing economy, which would largely eliminate it, and the other would be to simply turn a blind eye and let tort law sort out the provider-customer relations in the sharing economy, which will cut deep into the stability of the regulated ride, room, and errands providers of the traditional economy. For a while it looked as if the live and let live model was prevailing, as companies like Uber and Airbnb shot into hipster prominence. More recently, however, the sharing economy has taken serious hits, such as Uber’s complete ban in Nevada and fines in San Francisco and Airbnb’s tangles with New York, to name just a few.
A compromise would be to think hard about innovative regulation for the sharing economy. Eric Biber and I, for example, have suggested using a general permitting approach to segregate different segments of sharing economy markets in terms of level of activity and corresponding level of regulation. Or, as Shrai Shapiro has suggested, intermediate forms of regulation, fees, and licensing could be used to open markets to the sharing economy in limited ways. Nashville, for example, recently allowed Uber to operate at the City’s airport, but subjected it to registration, insurance, inspection, and background check requirements.
Either way, its clear that the sharing economy is not going away, but neither are consumer protection regulation, licensing fees, and taxes. The legal issues remain numerous and unresolved. I was glad to see several of my students take hold of this theme and delve deeply and insightfully into its future.