Pluralizing the 'Sharing' Economy

The so-called “sharing economy” presents one of the most important and controversial regulatory dilemmas of our time — yet, surprisingly, it remains under-theorized. This Article supplies needed and missing analysis. Specifically, the Article offers a regulatory model that distinguishes between two separate kinds of transaction: conventional economic transactions and those that rely on temporary access to goods and services that would otherwise go underutilized (what I call “access to excess” transactions). The regulatory regime that this Article proposes would distinguish between true access to excess transactions and conventional transactions. The model is rooted in a version of pluralist theory that posits that the state is responsible for cultivating a range of social institutions that offer meaningful economic alternatives to individuals. Recognizing access to excess transactions in a separate legal regime does not mean countenancing all access to excess activity in an under-regulated Wild West of markets. Pluralism has something to offer here as well: I argue that, properly understood, pluralistic principles do not endorse free-market and hands-off policies. Rather, they require state intervention to preserve existing choices, embed and balance diverse values (not only autonomy), ensure fair competition, and protect consumers and employees from strategic and opportunistic behaviors. Thus, pluralistic principles offer the normative foundation for inventive regulation — neither conventional nor free market — that can restrain some of the sharing economy’s harms without impeding innovation. Finally, the Article reverses the lens: The sharing economy serves as a real-life laboratory to reveal the operation of pluralistic theory and, thus, sheds light on the theory’s limitations. In particular, the sharing economy shows how the plasticity of pluralistic theory permits harmful free-market policies to masquerade as “choice.”