Earlier this year, I had the honor of moderating a panel speaking about transportation sharing legal issues at the University of Hawaii Law Review's sharing economy symposium. The editors have been hard at work since, and the symposium issue is being printed as we speak.
They also permitted me to pen this little missive, a short essay in which I discuss several recent cases about transportation sharing to illustrate what I see as one of the problems with how regulatory takings claims are framed.
This essay will review several cases which the sharing economy has thus far produced, cases where taxicab companies have sued municipalities for allowing ridesharing services to operate without medallions, most often employing a regulatory takings theory. I argue that the approach employed by these courts wrongly focus on the property interests involved, rather than where the real analytical question resides: what are the investment-backed expectations of those already providing vehicle-for-hire services in the marketplace. Shifting the analysis from artificial distinctions between property for purposes of the Takings Clause and other forms of property, would, I conclude, put the focus where it should be—an owner’s expectations when she obtains a taxicab medallion. Doing so would place these questions in the proper takings context, to be measured along with the other factors which courts consider in most regulatory takings cases.
Check it out: "Property" and Investment-Backed Expectations in Ridesharing Regulatory Takings Cases, 39 U. Haw. L. Rev. 301 (2017). Given the Supreme Court's recent foray into the definition of Takings Clause "property," and Justice Thomas' call to revisit regulatory takings doctrine, I'm hoping this essay will add to the creative flow for our next steps.
My thanks to the editors for accommodating my practitioner's schedule, and for allowing the essay to serve as the foreword to the scholarly articles on the sharing economy in the rest of the symposium volume. We'll post up notice when the other articles in the symposium are available -- I've read them, and they are well worth it for those of you interested in this developing area of law.