Brescia on the Sharing Economy

Raymond H. Brescia of Albany has written Regulating the Sharing Economy: New and Old Insights into an Oversight Regime for the Peer-to-Peer Economy, 95 Nebraska Law Review  2016 (Forthcoming). Here is the abstract:

The significant expansion of new, peer-to-peer businesses, supercharged by the internet and mobile technologies, has led to an exploration of the proper role that government regulation and oversight should play in these new ventures and markets. The value these companies bring in terms of convenience, quality, and competition justify an approach to regulation that promotes innovation but recognizes the need for consumer protection within these markets. As within this so-called “Sharing Economy,” where companies, regulators, and consumers grapple with the question of how to strike the right balance between innovation and consumer protection, there is an industry that shares many features with Sharing Economy models, one that has dealt with many of these same questions for centuries. That industry is the legal profession, and the manner in which it, and the regulatory infrastructure that has evolved as that sector has evolved, offers lessons to those who wish to explore the best way to regulate the Sharing Economy. Because the legal profession shares so many features with the Sharing Economy and has wrestled with many of the same questions with which actors inside and outside the Sharing Economy now struggle, one can glean insights from the lessons learned over the centuries of the development of the rules and protections that govern the functioning of the legal profession to help inform the debate over the need for and contours of any coming regulatory oversight of the Sharing Economy. Moreover, as the manner in which the legal profession has been regulated over the last two centuries exhibits many of the hallmarks of New Governance approaches to regulation, one can also consider New Governance models in any approach to regulation of the Sharing Economy. This Article thus attempts to engage in an analysis of the evolution of regulation of the legal profession in the United States to unearth lessons from that evolution and draw insights from it that might inform approaches to regulating the Sharing Economy and help strike the balance between innovation and consumer protection. These prescriptions consciously borrow from New Governance models to suggest an approach to regulation of the Sharing Economy that will encourage experimentation and innovation, while not jeopardizing consumer safety.


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