So it may come as a surprise to read the full referent of that opening phrase: as Will Davies, one-time ideas man of the UK think-tank Demos, went on to observe, he was referring “not to civil rights or legal aid lawyers, but lawyers who can manipulate equity, voting rights, debt, share, audit and so on.” In seeing, he mused, “how far [these] can be tweaked in various directions, before they become something else…one starts to imagine a wholly different economy, simply through considering how freedoms, powers and responsibilities might be combined differently, via subtly redesigned legal instruments.” This window on the world of commercial law positions “public-spirited law” in unexpected ways, opening up the possibility of combining activism and business law.
Both the potential and the limits of a juxtaposition between business law and activism are perhaps nowhere more vivid than in the surge of debate around the sharing economy. Notwithstanding the frequent appearance of the sharing economy in the pages of mainstream business magazines, there are a plethora of ways to understand the innovations being wrought by what is sometimes narrowly understood as “a set of technology-enabled practices that make it possible to reuse excess capacity.” I’ll return to this odd formulation below, but it is a classic instance of what Dan Gregory, in the August 2014 issue of STIR, termed the “narrow confines of extractive institutional models that focus ruthlessly on exchange value.” Gregory’s contention “that there is no such thing as capitalism” pointed to the extensive and expanding threads of non-capitalist activity that already braid our economic landscape and urged us not to forget the distinction between markets and capitalism. His call is echoed in the lively and eloquent plea by Gibson-Graham, Cameron and Healy to “take back the economy,” in a book that takes readers on a creative journey of reimagining labour, markets, finance and property through the lens of “community economies.” The sharing economy, then, is potentially as much a solidarity food co-operative as it is a private proprietary platform like FarmDrop, as much a community-owned renewable energy scheme as the energy investment platform Mosaic, as much a social enterprise bicycle shop as it is Uber.
Of course, there are many important differences between the kinds of examples I list above. While they may share the capacity to disrupt current markets, the deeper systemic implications of how that disruption is institutionally configured are contested in a bewildering swirl of claims made for Hayekian self-organising spontaneity, Rifkinesque third industrial revolutions, and a dizzying array of commons-based visions for the sharing economy. Increasingly, however, it is by unpicking the diverse legalities that underpin specific concrete sharing economy initiatives that we can better understand their ability to drive systemic change. On one level, this has been happening already. The legalities of sharing economies have become an overt flashpoint of debates, certainly in popular media accounts on the blogosphere and in think-tanks like Nesta. Slowly they are also becoming the stuff of government enquiries: witness recent US Congress hearings and a reference to Spain’s government competition agency. But law is important in a much deeper way than the question of “how to regulate the sharing economy.” Although that matters a great deal, there is already a rapid tendency to frame the problem of regulation in all-too-familiar terms, stressing the appropriate balance between competitiveness and consumer protection alongside anxieties about the misuse of regulatory protection by self-interested incumbents. We can see these ways of framing the debate in a range of diverse recent settings, from the US Congress hearing mentioned above, the UK government’s response by the Department of Communities and Local Government to promoting the sharing economy in London, and a debate on the sharing economy by Australia’s Grattan Institute.
But framing the issues in this way misses a vital opportunity to probe more deeply into how we understand the role of law—and lawyers themselves—in opening up the pathways of the sharing economy. It misses the opportunity to reframe exchange itself, to weave social and ecological values into the heart of exchange, rather than bolting them onto the edifice of commercial exchange as a protective afterthought. That way lie tired debates about red tape, special interest politics and regulatory overload. Instead we should try, in Will Davies’ words, to “extend the liberating elements of productive capitalism into the social realm,” in ways that recognise that no matter how creative or visionary the political and social vision of a pioneer in the sharing economy, the “regulatory and legal tramlines that have already been laid down” will need to be re-imagined. The power of law to occupy our economic futures is in need of being brought front and centre, for very specific conceptions of finance, markets, labour and property emerge as a result of the way “law enables individuals and on institutions to send laser beams from one point in time and space to another, saying ‘this is what will take place; this is what we agree has happened; this is what must happen; these are the conditions of co-operation.’”
Janelle Orsi, profiled as a Legal Rebel in 2010 by the American Bar Association, is an exemplar of a legal imagination that makes this odd juxtaposition obvious and central. A re-imagining of these legal laser beams is at the heart of what she calls “transactional law” in her pioneering work on the sharing economy. “To most law students and lawyers,” she says, “practicing transactional law isn’t an obvious path to saving the world…[but] transactional lawyers are needed, en masse, to aid in an epic reinvention of our economic system.” In her book, Practicing Law in the Sharing Economy, and the work of the Sustainable Economies Law Center she co-founded in Oakland, USA, she opens up a wealth of diversity in the ways law can structure transactions, and thus provide an infrastructure of exchange that moves beyond business-as-usual. Her work mixes a range of strategies to achieve this. She is creating new legal training pathways using apprenticeship structures combined with immersion in the social economy. She also runs a Resilient Communities Legal Café that provides affordable legal advice in a public collective setting that becomes part professional support but also part living classroom and community organising site. Finally, the Sustainable Economies Law Centre has, in collaboration with other new economy actors, sponsored successful legislative and regulatory change across a range of topics such as home food businesses, worker co-operative structures and peer-to-peer carsharing. She grounds all of her work in careful principled reflection on the ways in which law can reframe our modes of agreement, of constructing organisations and of building systems, inspiring others to develop a creative legal imagination about the possible ways forward—a path I hope to touch on briefly here.