When Janelle Orsi graduated from the University of Berkeley’s Boalt Hall School of Law in 2007, she looked for a niche and found one in sharing. She built up a practice that specialized in helping groups of people come together and make common use of resources — shared housing, community gardens, car sharing, worker cooperatives, that sort of thing — without throwing their rights to the wind. Science fiction writer Bruce Sterling has poked fun at so-called sharing law as the province of "Favela Chic people who live off free software and stuff they snag off Craigslist." Orsi, though, saw a nuts-and-bolts need for attorneys who understand how to make the law work for people eager to work together.
But despite her growing reputation as "the sharing lawyer," Orsi was just one attorney, and the sharing economy was "exploding." So four years ago, she and attorney Jenny Kassan co-founded the Sustainable Economies Law Center.
The Center spends part of its time advocating to change laws, in cities especially, that make it painful for collaboratives to codify themselves. Orsi and Kassan’s team of six still provides hands-on legal guidance, running "advice cafés" in the Bay Area. "Pretty much every week," Orsi said, "we get fascinating things walking through the door. Cooperatives, time banks, community currencies…"
That what a peer-to-peer economy needs is more attorneys might, in lay people, spark cognitive dissonance. The problem, according to Orsi, is how society thinks about lawyers. And to fix a modern problem, she and her colleagues are leaning on the model of that famous attorney of centuries past, Abraham Lincoln.
NC: Can you distill for a layperson the laws that, as you see it, make it difficult to share?
Janelle Orsi: Over the course of the 20th century, we’ve built tons of regulations into our society aimed at controlling things that are big and exploitative. We were thinking about big companies, large-scale industry, centralized businesses, because they’re basically, you know, dangerous. They exploit workers, they pollute the environment, they can cause massive public health disasters. But the irony of the laws that are supposed to protect us from big companies is that they make it impossible for anything but a big company to operate, because they’re so burdensome to comply with.
Picture 300 people coming together to form a small food cooperative. They get a warehouse, they’re purchasing a lot of food and they’re divvying it up amongst themselves. Potentially — because they’ve gotten a space and because there’s a pretty good number of them — in the eyes of the law they could just be looked at as a grocery store. It opens up a huge can of worms the moment any sort of collective activity begins to look like a business.
NC: Creative Commons is an example you’ve used of a legal framework that lets people figure out a nuanced way to claim their rights. There the subject is copyright, but what does it look like when you apply that approach to sharing?
Orsi: One thing that Creative Commons offered the world is that it created a structure in which people can share things within limits. That’s the key. A lot of us are willing to share things, but we need to know what the limits are.
The next frontier is creating replicable models: Agreements for sharing a car, sets of bylaws for worker cooperatives. There’s so much work that needs to be done to think about every realm of our lives — housing, transportation, food, work, energy — not through the typical economic arrangements, but how are we going to form organizations or collaborations that are going to meet these needs. What would that look like? The templates for that are still largely unwritten.
One thing our organization thought we’d do when we started was profile existing examples of shared housing or time banks and do an in-depth legal profile of how they work. And every time we got to know one in detail, we would realize, “Oh my gosh, this is illegal. We can’t write about this. It’s going to expose a major flaw in what they’re doing,” either because a layperson wrote it and didn’t know what they were doing, or a lawyer wrote it and didn’t tailor it to the unique situation. So taking existing things and replicating them could be dangerous.
NC: As a non-attorney, I tend to think of a contract as a matter of competing ownership, of a piece with the idea that the American dream is to own things ourselves as much as possible. Am I thinking about that wrong?
Orsi: Our legal system says if you want to create an arrangement with another person, you are free to do so and we will serve as the enforcing agency. If I made an agreement to share a car with a neighbor and that neighbor somehow violated our contract, I can take it to court. That will continue to be the role of contracts.
All of us are going to be party to a lot more contracts, and contracts that we’re really involved in negotiating ourselves. Already, if you go to a store there’s sort of an implied contract, so we sort of live in a sea of contracts. But the major difference is that we’re creating new relationships that are outside the box, much more collaborative, and we’re defining the terms of them.
But as for property, there is this sense that ownership is the way that we get access to things, and if you don’t own something you really don’t have any guaranteed sense that you’ll have it when you need it. Owning land feels like the most secure way to know that you’re going to have a place to live in the world. Owning a car feels like the most secure way to know that you’re going to be able to hop in and drive at any moment. But ownership really isn’t a thing. It’s legal rights and assumptions.
If you own land, it’s not like there’s some cosmic force tying you to the land. It means that society is recognizing your right to live on the land, sell it, develop it, you know. If we can let go of this supreme notion of ownership, we can recognize when our needs could be met in the same way, when we could get a bundle of rights — though it might be a smaller bundle of rights — through other means, like being a member of a cooperative that owns land or owns cars.
NC: What have you learned in your six years of practice about how you architect sharing to avoid the "tragedy of the commons"?
Orsi: It’s funny you use the phrase, because I’ve derived a lot of ideas from [political economist] Elinor Ostrom, the one who really developed this idea of the tragedy of the commons and who came up with a set of principles for the management of a common pool of resources to ensure that they are preserved for the benefit of the commons and not exploited by individual actors. And I’ve thought, wow, these eight principles can really be applied to almost any organization we can form.
The other phrase that keeps popping into my head is "the tyranny of structurelessness," the title of an article written in the ’70s [by feminist Jo Freeman]. I think the sharing economy began around a lot of structureless groups, people coming together and saying, "Hey, let’s start this thing. Let’s have a garden together! Let’s share this house!" They don’t want to think about having any structured agreements or rules. But what happens in this structurelessness is that natural hierarchies set in, or people become disengaged, or conflict creeps in, and there’s not a way to address it and reverse those processes.
NC: Is the “tyranny of structuralessness” an argument for calling lawyers into situations that at first glance might seem informal?
Orsi: Part of it is that the vision of attorneys most people have comes from television, and most television is about conflict. But half of the attorneys in the country are transactional attorneys, helping people to build relationships. Attorneys have positioned themselves in society to mostly grease the wheels of big companies and wealthy people, but there is a role for attorneys at a much more down-to-earth, grassroots level of just helping people, say, form a co-ownership agreement for a house or a car.
And I think there’s a huge role for laypeople to acquire the skills for which they might otherwise go to an attorney. Lay people can write agreements for themselves to a pretty large extent. If lay people were generally trained more — more conflict-resolution training, more leadership training — those are the skills we’re all going to need in the sharing economy.
NC: Has this notion of sharing caught on in law schools?
Orsi: As far as training lawyers, no. But one thing my organization is doing is creating a network of attorneys we’re calling the Sharing Economy Attorney Network, and it’s going to go live in a couple months. Another thing that my organization is trying to do in California primarily is to help people become lawyers without going to law school, because there’s sort of this vortex you get sucked into in law school. You go into debt, you get all of these expectations of how you should act and what you will do and where you will go, and it’s just damaging to people. It’s just really not a good place to be training the sharing lawyers of the future.
In California you can become a lawyer without going to law school by apprenticing with a lawyer for four years, so we have a blog about that at LikeLincoln.org. Lincoln didn’t go to law school. It’s all part of the bigger picture of ensuring that there will be lawyers throughout the country who are competent to serve communities and help people to form cooperatives and all of that.
Orsi’s most recent book, Practicing Law in the Sharing Economy, was published in August 2012.
Nancy Scola is a Washington, DC-based journalist whose work tends to focus on the intersections of technology, politics, and public policy. Shortly after returning from Havana she started as a tech reporter at POLITICO.