Emory Law Journal

Volume 67Issue 2

The Myth of the Sharing Economy and Its Implications for Regulating Innovation

Abbey Stemler | 67 Emory L.J. 197 (2017)

A deflated air mattress rests in the corner of Airbnb’s world headquarters. It symbolizes how Airbnb allows regular, local people to earn extra income by renting out space in their homes. Yet, this symbolism fails to represent what the company has become—a unicorn receiving much of its revenue from professionals with full-time listings. The poorly folded wad of plastic exemplifies the Myth of the Sharing Economy, which has been consistently used to subvert regulation. While much has been written regarding the benefits of the sharing economy and how to regulate it, and disruptive innovations more broadly, this Article is the first to critique the sharing economy by exploring the intersection between narrative and regulation. It also distills lessons for regulating future innovations and demonstrates the importance of questioning the difference between rhetoric and reality to achieve public policy goals.

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Untangling the Market and the State

Wentong Zheng | 67 Emory L.J. 243 (2017)

The government plays increasingly active and diversified roles in the modern economy. How to draw the boundary between the market and the state has emerged as a contentious issue in various areas of law, including constitutional law, antitrust, and international trade. This Article surveys and critiques the law’s current approaches to the market-versus-state divide, embodied in four tests based on ownership, control, function, and role, respectively. This Article proposes an alternative market-versus-state test based on the nature of the power being exercised in the challenged action. This power-based test not only better distinguishes between the market and the state, but also illuminates why the market-versus-state distinction needs to be made in the first place. Applying this power-based test would bring much needed logic and clarity to many market-versus-state issues in various legal contexts.

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Inherently Governmental: A Legal Argument for Ending Private Federal Prisons and Detention Centers

Fiona O'Carroll | 67 Emory L.J. 293 (2017)

Under the Federal Activities Inventory Reform (FAIR) Act of 1998, the federal government’s “inherently governmental functions” must be performed by government actors, while its “commercial activities” may be performed by private contractors. This statute has important implications for the legality of privately operated federal prisons and immigration detention centers. If operating prisons and detention centers is an inherently governmental function within the meaning of the FAIR Act, then these facilities cannot be operated by private contractors. This Comment provides a comprehensive legal analysis of whether the operation of prison and detention facilities is an inherently governmental function.

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