'Property' and Investment-Backed Expectations in Ridesharing Regulatory Takings Claims (Foreword)

The technology behind ridesharing enterprises is evolving at lightning pace, and because of that, the legal issues which arise when trying to fit these sharing enterprises into existing regulatory regimes can result in decisions that draw competing philosophies into focus. Police power hawks believe that these things should — like just about everything else — be subject to pervasive regulation. The public needs to be protected! Libertarians applaud free market forces at play. Let a thousand flowers of thought bloom! The property rights advocates... well, as I will suggest in this essay, we end up with a somewhat mixed bag. I say that because these interests draw me in opposite directions. I am not a big fan of regulations which limit entry into markets, and which stifle innovation. But I also favor a regulatory system, if it must exist, which allows investment and reliance, without fearing the government will just decide one day to ignore its own regulatory requirements and exempt others similarly situated from the regulations which govern existing participants. 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.