Peer-to-peer platforms such as Airbnb, Turo, TaskRabbit, Eatwith, and Uber are transnational market actors, generating millions of transactions, in multiple jurisdictions across the globe. These companies connect individuals and small businesses via online platforms and mediate transactions in the real, offline world between owners and renters, service providers and service recipients. Despite their clear importance and their market influence, the legal role of peer-to-peer platforms remains elusive. The emerging transnational legal order is a mixture of self-regulation and sporadic, concrete state or local regulation in several jurisdictions. I suggest thinking of platforms as transnational actors and offer a conceptualization of their legal role. Access platforms create and maintain a market with its own rules, conventions, and entry and exit points. To capture the role of platform as constituting a market, I rely on fiduciary law, an area of private law area concerned with power and vulnerability. This role creates duties toward the participants in this market. This duty explains why, for example, the platform should be responsible for the discriminatory actions of its participants. Other obligations include the duty to give prior notice before pulling out from an area of activity, and duty to create and maintain fair entry and exit rules.

This chapter studies access, a short-term and casual use of property. Two forms of access are analyzed: independent access, and access in cooperative and communal projects. The chapter offers a normative evaluation of access and highlights the values and concerns associated with flexibility and mobility.It revisits the justifications for private property discussed in Chapter II and demonstrates that these justifications can also defend an alternative vision of flexibility and mobility. Yet there is an important twist. Instead of freedom from interference, access fosters freedom from being tied down to a particular space. Instead of personhood, access supports the ability to experiment with one’s personality and pushes the boundaries of the self. In addition, access affects communities and changes interactions with other people. Access also raises significant normative concerns, such as vulnerability to immediate changes in health or financial stability, and vulnerability to platform power. This chapter then suggests preliminary guidelines for reform that are later developed in Chapter VII, including removing barriers to access, promoting consumer protection, restraining platform power, and respecting the principles of communal access by adjusting the legal rules of cases involving the physical integrity of the property.

This chapter presents the sharing economy phenomenon and studies its main characteristics. It argues that it is a diverse phenomenon with diverse normative implications. There is a tendency in legal academia to focus almost exclusively on Airbnb and Uber, and this tendency flattens the complexity of the phenomenon. The chapter maps the phenomenon based on an institutional analysis, focusing on who owns or controls the property or service. It identifies four main institutional categories: peer-to-peer markets that include both for-profit projects and nonprofit enterprises, commercial companies, communal projects, and governmental programs. The distinction among forms of access is important. Each category raises different legal and policy-oriented challenges. Each category also carries different normative value from the perspective of flexibility.

This chapter assumes the owner’s perspective regarding the decision to rent out intimate, privately used possessions, which the chapter names “intimate property”. It first critically analyzes the special legal treatment of intimate property as securing attachment and stability. The home is a central example. The chapter then goes on to describe modern challenges to this legal vision, including the tension between the home and the workplace and the rise of domestic work and home businesses. The access economy further complicates this vision. Airbnb, an online tourist marketplace that allows owners to share their homes for a fee, commercializes and destabilizes the meaning of co-living relationships in the home. The home becomes a site for fleeting, temporal interactions with tourists. Stable, intimate relations become intertwined with the commercial and the casual. The access economy thus creates a new conception of intimate property, functioning as a hybrid. It supports emerging personal markets, where intimacy shapes market practices and market practices shape the parties’ understandings of intimacy. This chapter explains the complexity of this fragmented vision, fleshes out the tension between stability and openness, and discusses the possible legal implications for legal regulation and antidiscrimination laws.

The introduction discusses the changes in consumers' preferences and the symbolic and practical decline of ownership. Young consumers, especially millennials, prefer experiences over things, comfort and ease of use over ownership. It then presents the sharing economy phenomenon, renames it "the access economy" and introduces the main argument of the book: the sharing economy pushes for a mobile and flexible vision of engaging with possessions and, as a result, with other people. It then places this argument within the broader context of property discourse.

This chapter develops the necessary conditions for the vision of property flexibility to flourish and become a valuable normative alternative. It returns to the themes raised in previous chapters, and advances three main arguments. First, it offers a robust normative account of the institutional choices for access, arguing that peer-to-peer markets offer considerable benefits from a flexibility perspective. Instead of the current regulatory support for commercial access, the law should consider regulatory means that encourage the peer-to-peer model of access. The problem with this endorsement of the peer-to-peer model is the power of the platform. Second, this chapter calls for a better conceptualization of the role of platforms as powerful agents constituting the activity. It suggests two possible reforms: the promotion of platform alternatives that have some public oversight, and the regulation of platforms as market-constituting fiduciaries. Finally, the chapter evaluates the comparative normative value of each vision, stability and flexibility, and offers guidelines for a legal scheme that recognizes both the subversive and the ideal.

This chapter considers the future of access, and flexibility in property more generally. It speculates on how new consumption technologies might affect property and the access economy. It covers big data analytics, the internet of things, and artificial intelligence. The tentative conclusion from this analysis is that new technologies promote further detachment from physical possessions, carrying on the trend marked by the access economy, but also exacerbating some of the vulnerabilities it creates. It is hard to know what the future holds, but the decline of property stability and the rise of flexible use provide a new prism for thinking about changes to the social institution of property.

The rise of the sharing economy and destabilization of property are embedded in social, economic and technological developments. This chapter describes the decline of stability in the new millennium. It reviews the processes that inspire or trigger the move to flexibility and mobility in property use. Four developments are analyzed: The Great Recession, technological advances (including online work, intellectual property, and online relationships), generational attitudes, and consumers' distrust of big corporations.

The conclusion broadens the analysis and compares the rise of flexibility in property to changes in other social institutions that have a physical presence in the world and are traditionally understood as contributing to spatial stability, such as the family, the workplace and the community. It proceeds to explain the property exceptionalism that is the core of this book.

The chapter establishes the centrality of stability in property law and theory today. It depicts and characterizes the legal protection of attachment, control, and possession as constituting a vision of stability. The chapter then analyzes and defends this conclusion along three categories: theories and justifications supporting the right to private property, legal doctrines, and doctrines that work to protect stable property relationships. It argues, following the famous Marxian distinction, that while property law accommodates a great level of flexibility in exchange value, it does not facilitate the same level of flexibility when it comes to use value. Use of physical property continues to be intimately tied to attachment and stability.