Precautionary Federalism and the Sharing Economy [Abstract]

• Date: 01 August 2018

8-2018 NEWS & ANALYSIS 48 ELR 10741

HONORABLE MENTION

Precautionary Federalism and the

Sharing Economy [Abstract]

Sarah E. Light

Sarah E. Light is an Assistant Professor of Legal Studies and Business Ethics at the Wharton School of Business at the

University of Pennsylvania, where she teaches Environmental Management, Law and Policy, and Negotiation.

The rise of the sharing economy exposes cracks in

legislative and regulatory regimes designed with a

dierent vision of the economy in mind. To date,

scholars and policymakers have focused primarily on

whether a nd how the government should re gulate the sha r-

ing economy—that is, on what form, if any, regulation

should take. is Article focuses on a logically anteced-

ent question—who should decide. Using the potentially

signicant, yet uncertain, environmental impacts of Uber

and Lyft as a case study, this Article argues that regula-

tory authority should be allocated according to t he prin-

ciple of precautionary federalism. Just as the precautionary

principle tells us that regulation can proceed in the face

of uncertainty about signic ant environmental, health, or

safety risks, precautionary federalism embodies a default

presumption in favor of multiple regulatory voices, and

against broad exercises of preemption under such condi-

tions. e presumption must be weighed against values

favoring uniformity, taking into account trade os across

dierent kinds of risks. A nd precautionary federalism is

time-bound—it acknowledges that greater certainty about

impacts may warrant a shif t from one allocation of author-

ity to another. is precautionary approach can ser ve an

information-forcing function about the signicance of

uncertain impacts, and oers the best way to achieve the

kind of rules cal led for by the precautionary principle.

is abstract is adapted from Sarah E. Light, Precautionary

Federalism and the Sharing Economy, 66 E L.J. 333 (2017),

and is adapted with permission.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.