Friday, September 9, 2016
Uniquely interconnecting lessons from law, psychology, and economics, this Article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals then is that the property system is well-suited to create recognizable and enforceable ownership norms that include the rights to acquire and retain ownership of property (parting with it only on terms defined by the owner), thereby also providing necessary economic incentives to share. Along the way, this article bridges the psychology research with Hohfeld’s description of the nature of rights, explaining the corresponding rights characterizations appropriate to describe each step in a child’s development of ownership understanding.
When we have a well-developed ownership regime—with a high reliability of enforcing ownership norms—we create the confidence in ownership that “ownership understanding” reveals is necessary for individuals to feel secure in sharing. So too does the development of the right to exclude and the corresponding right to include in property law track the underlying psychology to create the prerequisites in law to effect what might be called a “legal ownership understanding” that feeds the sharing economy, with sharing being simply an exercise of the right to include. The Article concludes with an ownership-sensitive definition of sharing that should prove useful to courts, regulators, and scholars alike, while remaining largely agnostic on the scope of desirable regulation of the sharing economy.