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Reconfiguring Property Theory and Legal Rules in the Sharing Economy

Shelly Kreiczer-Levy, Consumption Property in the Sharing Economy, 43 Pepp. L. Rev. 61 (2015).

In this moment of the sharing economy, Shelly Kreiczer-Levy explores why we can no longer think in terms of the traditional categories of private and public or neatly divide objects purchased for personal consumption and property intended for commercial exchange. The lines between these fundamental categories are being dissolved.

The effect is profound and wide-ranging. With the dissolution of boundaries comes the need to revise legal rules and doctrines germane to the regulation and functioning of an economy in which sharing is the norm rather than an occasional aberration. Property law and theory are at the heart of this project of revision and are central to Kreiczer-Levy’s analysis.

In some respects, Kreiczer-Levy’s article serves as a primer on basic aspects of the sharing economy. The work covers commonplace assets that individuals share, reasons why we share, who shares, benefits and costs associated with sharing, different types of sharing arrangements (e.g., private individual-based or commercially based), and methods for facilitating sharing (e.g., websites, advertising).

But this work is much more than an introduction. Kreiczer-Levy provides a sophisticated framework for understanding the sharing economy. She begins by explaining how the distinction between personal consumption property and commercial property has been fundamental to the shaping of legal rules and doctrines. Not only has this dichotomy been relevant in property law, as Kreiczer-Levy notes, it is fundamental to other areas of the law such as tax, privacy law, bankruptcy, criminal law, and insurance.

Exploring the rationales for this essential distinction, Kreiczer-Levy argues that it is related to the values and assumptions that the law recognizes in connection with each type of property. The dichotomy also relates to the kinds of relationships existing between people—family or friends, neighbors or strangers—with respect to the various assets being exchanged or protected from exchange.

As Kreiczer-Levy eloquently notes, there are different kinds of sharing. If objects that individuals typically purchase for personal consumption, like the home or car, are now being shared, do the same rationales (e.g., privacy) for protecting these objects and spaces make sense?

Kreiczer-Levy calls for a reconsideration of the categories and the legal rules that rely upon them. She posits that because use access is arguably valued as highly as ownership in the sharing economy and use is also related to benefits that society typically associates with ownership, such as intimacy, independence, and self-expression, this should factor into the reevaluation of legal doctrines.

Also, sharing can be, paradoxically, both intimate and not. This duality can exist within one exchange. The author urges that the law’s first step towards managing that duality is to acknowledge it.

Kreiczer-Levy revisits the personhood theory of Margaret Radin, also taking into account other important recent scholarship on the home and its cultural, economic, and legal meanings to provide a thoughtful analysis of how central property doctrines and laws are complicated by the emergence of the sharing economy and to suggest some ways for revising the laws in its wake. Rather than advocating stunting the growth of sharing enterprises through restrictive regulatory maneuvers or subsuming all transactions under the heading of commercial activity—the two main approaches she identifies as having been adopted by local governments in response to the sharing economy—she presents an alternative that is aimed at preserving and reforming the personal consumption property category.

Kreiczer-Levy reimagines the category as an “intermediate space.” This perspective appreciates that the phenomenon of sharing personal assets gives rise to “new types of transactions and interactions and a unique set of personal and social benefits and costs.” Owners and users shape this intermediate space, exemplifying collaborative consumption. By supplementing property doctrine and rules to think spatially, rather than merely in terms of the personal and commercial, she seeks to achieve a more productive and accurate account of consumption property interactions.

Everything, however, is not rosy in the sharing economy. Broaching the subject of discrimination, Kreiczer-Levy raises several difficult questions: What of the private right to discriminate? What level of legal protection should the law accord to owners regarding decisions about with whom they share their resources? Do the same justifications hold for granting special legal protections to personal consumption property when those objects are shared?

In raising these important questions, Kreiczer-Levy exposes significant gaps between what is occurring and the law’s conceptualization and treatment of sharing transactions. Reviewing the goals and purposes of fair housing and public accommodations laws and associated legal doctrines, she queries whether it makes sense to categorically exclude personal consumption property from the scope of those laws.

Kreiczer-Levy concludes that such exclusion is counter to the values of “interaction and exchange” that define the sharing economy. Thus, a new legal framework is required. The framework should encompass considerations of how the property is used (i.e., primarily for personal consumption or by multiple users in a series of ongoing transactions).

Local and state governments are in a tizzy trying to find ways to tackle the sharing economy. Their panic is evident from the flurry of ordinances and other regulation popping up across the country that at times has caused more upheaval and confusion than calm and clarity. In seeking courses of action to address the sharing phenomenon, government officials and property legal scholars would do well to consider the issues and strategies Kreiczer-Levy proposes.

Cite as: Kristen Barnes, Reconfiguring Property Theory and Legal Rules in the Sharing Economy, JOTWELL (October 26, 2016) (reviewing Shelly Kreiczer-Levy, Consumption Property in the Sharing Economy, 43 Pepp. L. Rev. 61 (2015)), http://property.jotwell.com/reconfiguring-property-theory-and-legal-rules-in-the-sharing-economy/.