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 undertheorized. This Article supplies needed analysis. Specifically, the Article offers a regulatory model that distinguishes between two separate kinds of transactions: 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 and social 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 may enable harmful free-market policies to masquerade as “choice.

Registering Relationships

Despite the dramatic changes in family structure in the past decades — including the unprecedented and skyrocketing number of families who live in non-marital arrangements — marriage and marriage-mimic institutions remain the only legal options for the recognition of relationships. This regulatory regime leaves millions of Americans without the means to establish and protect relationship rights. The article suggests that the legal issues arising from non-marital relationships would be best addressed if more options for legal recognition of such relationships were offered. Accordingly, this article presents the primary principles of a registration-based marriage alternative, founded on contract: “registered contractual relationships.” This legal institution would offer couples the option to sign — and deposit with the state registrar — a contract defining the partners’ obligations and rights vis-à-vis one another and changing their status to that of “registered partners.” Registered partners would receive most of the rights and benefits that the state provides for married couples. Registration would not require a solemnization process nor any ceremonial or religious component and would provide an easy way to dissolve relationships in cases where couples do not have minor children. This model enjoys the flexibility of contracts and the certainty of official registration. It promotes greater autonomy in family formation in two ways: it allows more choice among state-sanctioned mechanisms; and it allows people to design the terms of their relationships, rather than imposing the one-size-fits-all structure of marriage. The introduction of registered contractual relationships would have far-reaching legal and societal consequences. It would provide a functional model for registration and termination of partnerships, offer an alternative that is free of (and reduces) the harmful symbolism of marriage, and accommodate a wide range of family structures. At the same time, it would efficiently address the state’s need to regulate some aspects of relationships in the interest of avoiding and mediating conflict and of encouraging couples to think about and negotiate their rights early in their relationships. The article also looks at the success of the French PACS — a model that resembles registered contractual relationships and provides important lessons to the United States

First Comes Marriage, Then Comes Baby, Then Comes What Exactly?

Taiwan’s legalization of same-sex marriage is an event of international importance concerning the rights of LGBTQ+ individuals and partners; further, it constitutes an opportunity to examine the state of LGBTQ+ equality in Taiwan and elsewhere. To this end, through theoretical and comparative lenses, this Article asks what equality for LGBTQ+ means and what comes after marriage. It offers perspectives on the past, present, and future of the intersection of same-sex marriage and equality. Looking at the path to same-sex marriage in Taiwan, the Article argues that the Taiwanese Constitutional Court’s ruling legalizing same-sex marriage maintained a line between domesticated liberty for LGBTQ+ people, on the one hand, and limits on that population’s liberty to form families, on the other. The law that implemented the ruling kept this tension; hence, it enfolds discrimination against LGBTQ+ individuals, especially in the area of family formation. But Taiwan is not exceptional in holding onto parentage discrimination after legalization of same-sex marriage. The European perspective teaches that discrimination in parentage remains after legalization but disappears over time. Experience from elsewhere also clarifies that the fight for equal parental rights can be difficult, and that much opposition to LGBTQ+ equality is embedded in biases related to LGBTQ+ parenting and in racism. Finally, moving to explore future paths to parity, the Article contends that, for various reasons including those indicated above, marriage cannot serve as the final frontier of LGBTQ+ equality. Substantive equality in Taiwan requires, at the least, the repeal of adultery as a grounds for divorce and for civil remedies. A broader view of equality and autonomy also warrants adopting a regime in which marriage is not the only mechanism to access rights and benefits that are linked to relationships of interdependency. Likewise, creating more options for legal recognition of relationships is imperative for individuals in diverse types of relationships, and for LGBTQ+ individuals in particular. Lastly, the Article suggests that discrimination that currently exists in the area of obligations toward parents-in-law has a liberating aspect. The Taiwanese experience is a teaching moment for LGBTQ+ movements and scholars around the globe. It calls on other scholars to avoid generalizations in framing paths to liberty and equality by being sensitive to local differences, and to reconsider the place of marriage as the golden standard of LGBTQ+ equality

Pluralism and Regulatory Response to the Sharing Economy

Providers use platforms in dissimilar ways. Some providers create new capacity and designate it for exclusively commercial use via platforms. For example, a provider buys a car that serves predominantly for driving paying passengers, converts a standard residential rental to a short-term rental, or works full-time via a platform. Conversely, other providers leverage their idle capacity and monetize it (e.g., a provider uses the family car to drive platform passengers in the evenings). This chapter argues that the distinction between new and idle capacity is a fundamental concept that should guide regulation of activities in the platform economy. Creating new capacity for platform use creates negative externalities that are likely to reduce choices for consumers and providers. Examples include reduction in the availability of traditional services (e.g., hotels, taxies), decline in availability of standard residential rentals, and cutbacks in protected employment opportunities. However, putting excess capacity to platform use produces lower negative externalities and can bring benefits: increasing the availability of flexible employment opportunities and expanding consumer market choice. The chapter deploys the theory of pluralism to support regulation that increases employee and consumer choices but also curbs harms attendant to the platforms and protects traditional services and institutions that are important to society

The Marital Wealth Gap

Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata. How can the state restructure the law to alleviate the marital wealth gap? The Article proposes a fundamental shift in the way the state treats wealth and family status. It advances a theory grounded in transformative “recognition and redistribution” that decentralizes marriage’s monopoly on wealth-related benefits and simultaneously aims to reduce wealth concentration among the richest households. Principally, since marriage is the preserve of the well-off, the state should decouple wealth benefits from marriage. At the same time, it should combat the structures that enable wealth concentration among affluent married couples, thereby dismantling the architecture that supports the marital wealth gap

The Marital Wealth Gap

Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata. How can the state restructure the law to alleviate the marital wealth gap? The Article proposes a fundamental shift in the way the state treats wealth and family status. It advances a theory grounded in transformative “recognition and redistribution” that decentralizes marriage’s monopoly on wealth-related benefits and simultaneously aims to reduce wealth concentration among the richest households. Principally, since marriage is the preserve of the well-off, the state should decouple wealth benefits from marriage. At the same time, it should combat the structures that enable wealth concentration among affluent married couples, thereby dismantling the architecture that supports the marital wealth gap

Rich Dad, Gay Dad: The Wealth Traps of Gay Fatherhood

While legal and societal progress has enabled gay fathers to form families, there remains a critical blind spot in our understanding of their financial wellbeing. Specifically, there are indications that a wealth gap may exist among gay father households. This article introduces a novel taxonomy of the mechanisms that likely contribute to a wealth gap for these households, including surrogacy and adoption costs, legal recognition expenses, parental leave policies, discrimination in housing and borrowing, and limited support from families of origin. These obstacles reflect the structural features and prejudices that disproportionately affect households led by non-heterosexual fathers. The article highlights the harm created by the wealth gap, conceptualizing it alongside the racial and gender wealth gaps. It argues that policies that create wealth barriers cannot be justified merely by biology, but are a result of the aforementioned obstacles. The article suggests possible interventions to reduce this harm, while emphasizing that policies aimed at reducing the wealth gap will also challenge the status quo of gender role division. Overall, this article fills a gap in our understanding of wealth disparities among gay father households and challenges the notion of gay fathers as a uniform and privileged group. It highlights the need for more research and attention to the distinct wealth barriers faced by different types of families

Incrementalism, Civil Unions, and the Possibility of Predicting Legal Recognition of Same-Sex Marriage

Scholars who have examined the legal recognition of same-sex partnerships in European countries have concluded that the path to the legalization of same-sex marriage follows an incremental process involving specific stages. They suggest that it is possible to predict, based on certain visible social and legal processes or assessable parameters, which U.S. states will be the next to recognize same-sex marriage. These scholars argue that such small cumulative legal changes at the state level constitute the best means of legalizing same-sex marriage in the United States, and that civil unions are a necessary step in this process. This article shows that predictions based on these theories have not been accurate and that attempts to generalize the experience of legalizing same-sex marriage overlook a variety of often significant and sometimes subtle social, political, and legal differences between the United States and Europe. Therefore, these theories cannot sufficiently explain how social change happens and cannot be used to formulate strategic plans for legalizing same-sex marriage in the United States. This article also proposes that the adoption of civil unions can significantly delay legal acceptance of same-sex marriage. It suggests that the theories overlooked the fact that in some European countries, lesbian and gay organizations were more interested in securing partnership rights for same-sex couples, rather than marriage itself. This path is the one that advocates in the United States should take

Cloning and the LGBTI Family: Cautious Optimism

While fertile, opposite-sex couples can have children who carry a mix of their genes without involving third parties in the reproductive process, this option is not available to the majority of the LGBTI community. If this were simply a biological fact, it would not raise any equal protection or other constitutional issues. However, emerging technologies in the field of reproductive cloning may offer the LGBTI community the chance to have genetically related children - possibly even with a mix of both partners’ genes. As such, bans on federally funding research that would help to refine and ensure the safety and efficacy of these procedures unconstitutionally denies LGBTI couples right to have children that is not similarly denied to opposite-sex couples who enjoy the fruits of research and technology that allow them to conceive without the use of a third party’s organs. Compounding and exacerbating this inequality is the fact that much of the opposition to cloning stems from inaccurate, heterosexist - and, at times, even explicitly homophobic - claims. This article challenges the popular arguments against cloning, suggesting that they are largely fallacious and, in many cases, outright discriminatory. It suggests that reproductive cloning could be incredibly useful for the LGBTI community, and that relegating research on these procedures to the private sphere significantly harms this class. At the same time, cloning should not be treated as the key to LGBTI equality