Practicing law in the sharing economy : helping people build cooperatives, social enterprise, and local sustainable economies / by Janelle Orsi.
2012
KF1470 .O77 2012 (Map It)
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Author
Title
Practicing law in the sharing economy : helping people build cooperatives, social enterprise, and local sustainable economies / by Janelle Orsi.
Published
Chicago : American Bar Association, [2012]
Copyright
©2012
Call Number
KF1470 .O77 2012
ISBN
9781614385462 (print ; alk. paper)
1614385467 (print ; alk. paper)
1614385467 (print ; alk. paper)
Description
xx, 609 pages ; 23 cm
System Control No.
(OCoLC)798263926
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Edith L. Fisch Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Edith L. Fisch Fund
Table of Contents
Acknowledgments
xix
ch. One
Legal Landscape of The Sharing Economy
1
pt. 1
Introduction
1
pt. 2
Sharing Economy
2
Consumption
4
Production
5
Exchange
9
Four Platforms for the New Economy
10
pt. 3
Legal Conundrums in the Sharing Economy
12
Laws That Didn't Foresee Collaborative Relationships
13
Laws That Didn't Take into Account the Varied Motivations Behind Our Activities/Enterprises
14
Laws That Didn't Foresee Diverse Forms of Exchange
15
pt. 4
Practicing Law in the Sharing Economy
16
ch. Two
Practicing Law In The Sharing Economy
21
pt. 1
Lawyers in a Sharing World
21
Who Serves the 70 Percent?
21
pt. 2
Becoming a Sharing Economy Lawyer
25
Skills and Practices
25
Training the Next Generation of Sharing Economy Lawyers
30
pt. 3
Structuring a Sharing Economy Law Practice
36
Solo Practice
36
Small Firms
37
Law Cooperatives and Collectives
38
Practicing Sharing Economy Law as a 501(c)(3) Nonprofit
44
pt. 4
Developing a Niche and Finding Clients
52
How to Frame Your Practice and Find a Niche
53
Finding Clients
56
pt. 5
Representing Clients
59
First Contact with Prospective Clients
59
Preparing to Meet with a Client
60
First Full Consultation
61
Follow-up Memo
62
Entering into an Agreement for Legal Services
63
Providing Legal Services
63
pt. 6
Compensation for Services
63
pt. 7
Common Ethical Issues in Sharing Economy Law
79
Multiple Representation
80
Representing Clients in Collaborative Transactions with Non-clients
84
Moving Between the Roles of Mediator and Attorney
89
ch. Three
New Kinds of Agreements
95
pt. 1
Agreements as the Building Blocks of a Sharing Economy
95
Building an Economy with Agreements
95
Agreements as Private Sharing Economy Laws
97
Unique Qualities of Agreements in the Sharing Economy
98
Key Agreements for the Sharing Economy
99
pt. 2
Key Considerations in the Creation of Agreements
101
Many Functions of Written Agreements
102
Agreements That Foster Resilient Relationships
105
Language [and Pictures]
110
Assisting Clients in Agreement Formation
113
pt. 3
Key Provisions of Agreements
115
Two Frameworks for Sharing Agreements
116
Co-Ownership Questionnaire
119
Buying the Property
119
Designation of Units, Exclusive Areas, and Common Areas
120
Who Lives at the Property
120
What May or May Not Be Done to or on the Property
121
Property Related Costs and Accounting
121
Taking Care of and Developing the Property
123
Refinancing the Property
124
If One Co-Owner Has Financial Troubles
124
Selling the Whole Property All at Once
124
Selling Individual Interests in the Property
125
Making Decisions About the Property
126
pt. 4
Sample Co-ownership Agreement
127
Co-Ownership Agreements and the Spectrum of Sharing
127
Working with This Agreement
128
Co-Ownership Agreement for [ADDRESS]
128
1.
Tenants-in-Common Agreement in Relation to the Property
129
2.
Owners and Parties to This Agreement
129
3.
How Owners Allocate Rights and Responsibilities
129
4.
Cotenancy Interests
130
5.
Units, Common Areas, and Exclusive Use Common Areas
130
6.
Use of Property
131
7.
Rental and Occupancy
132
8.
Decision-Making and House Rules
133
9.
Financial Arrangement for Purchase
133
10.
Responsibility for Debt on the Property
134
11.
Sharing Costs
134
12.
Insurance
135
13.
Creation of a Joint Bank Account and Payment of Expenses
135
14.
Creation of a Reserve Fund
136
15.
Keeping Accounts and Records
136
16.
Maintenance, Repair, Alterations, and Improvements
137
17.
Failure to Make Payments
139
18.
Encumbrances
141
19.
Transferring an Interest in the Property and First Right of Refusal
141
20.
Other Events Constituting Offers to Sell to the Other Owner
144
21.
Sharing of Losses Related to the Property
145
22.
Refinancing the Property
145
23.
Events Triggering Distributions
145
24.
This Agreement Shall Bind Future Owners
147
25.
Resolution of Disputes
147
26.
Indemnity
148
27.
Effective Date, Term, and Termination
148
28.
Miscellaneous Provisions
148
Attachments
149
ch. Four
New Kinds Of Organizations
151
pt. 1
Organizations in the New Economy
151
Mandate of Organizations in the New Economy
151
Designing Organizations for a Sharing Economy
153
pt. 2
Traditional For-Profit Legal Entities in the Sharing Economy
159
Corporations and Shareholder Primacy
159
Other Corporate Design Flaws
166
pt. 3
Adapting Traditional For-Profit Entities
169
Modified Corporate Structure
169
LLC Modifications
174
pt. 4
New Types of For-Profit Entities
175
Low-Profit Limited Liability Company (L3C)
175
Benefit Corporation
177
Flexible Purpose Corporation in California
181
pt. 5
Cooperatives
181
What Is a Cooperative?
187
Cooperative Nuts and Bolts
189
Co-ops as an Exit Strategy for Retiring Business Owners
196
Cooperatives That Are Not Cooperatives
197
Outside Investors and New Generation Cooperative Statutes
198
Types of Cooperatives and Examples
199
pt. 6
Nonprofit Organizations in the Sharing Economy
203
What Is a Nonprofit?
203
Section 501(c)(3) of the Internal Revenue Code
209
Pros and Cons of 501(c)(3)s
221
Other Nonprofit Variations
222
Nonprofits Without Tax Exemption
230
pt. 17
Nonprofit/For-Profit Hybrids
231
Fee for Service
231
Revenue-Generating Activities and Subsidiaries
231
Joint Ventures
232
Sponsorships
233
Royalties
233
Nonprofit Funds for For-Profits
233
pt. 8
Organizational Governance Models
235
ch. Five
New Kinds Of Exchange
259
pt. 1
I Can See Clearly Now the Money's Gone
259
Scarcity of Dollars
259
Spectrum of Ways to Exchange
261
Legal Gray Areas in the Spectrum
262
Areas of Law Implicated
267
pt. 2
Tax
267
Taxation of Barter, Swapping, and Gifts
269
What Is a Gift?
272
Paying Tax on Barter Income
274
pt. 3
Regulations on the Creation and Administration of Currencies
275
It Is Illegal to Make Coins That Will Circulate as Money
280
It Is Illegal to Create Currency Worth Less Than $1.00
283
It Is Illegal to Materially Alter the Dollar
283
It Is Illegal to Make Things That Look Too Similar to the U.S. Dollar
284
Bank Secrecy Act
285
pt. 4
Tax Exemption for Organizations That Administer Time Banks, Barter Networks, or Currencies
285
501(c)(3) Tax Exemption
288
501(c)(4) Tax Exemption
290
pt. 5
Paying Employees with Something Other Than Dollars
291
ch. Six
New Kinds of Capital
299
pt. 1
Community Capital in the Sharing Economy
299
Introduction
299
Why Is It So Hard to Raise Capital?
300
What This Chapter Covers
301
pt. 2
Securities Law Primer
302
What Is a Security?
303
pt. 3
Registering Securities or Finding an Exemption
316
Registration Requirements
316
Exemptions from Registration
318
pt. 4
Funds, Investment Clubs, and Business Development Companies
348
1940 Investment Company Act
349
Business Development Company
352
State-Regulated Funds
354
Investment Clubs
356
pt. 5
Models for Creative Capital Raising and Shared Equity
356
Community-Supported Enterprise Models
356
Crowdfunding
357
Direct Public Offerings
359
ch. Seven
Employment Laws And New Ways of Working Together
367
pt. 1
New Ways of Working Together
367
From Working for Others ... to Working with Others
368
pt. 2
Employment Laws Get an Economic Reality Check
371
Employment Laws and Our Relationship "Issues"
372
Employment Laws and the Relationships of the Sharing Economy
374
pt. 3
Working Together Outside of Employment Relationships
385
Partners/Proprietors
386
Volunteers
396
Interns
401
Independent Contractors
408
Work That Is Not Actually Work
411
ch. Eight
New Forms of Production And Commerce
415
pt. 1
Collaborative Production/Collaborative Consumption
415
New Modes of Production and Consumption
415
When Sharing Becomes Commerce
416
Purposes of Regulation
417
pt. 2
Approaching the Gray Areas
419
Examples of Gray Areas
420
Steps to Approaching a Gray Area
423
pt. 3
When the Sharing Economy Is Exempt from Regulation
425
pt. 4
Navigating Out of Gray Areas
431
When the Consumer, by Means of Collaborative Agreements, IS the Producer
431
Production and Exchange in a Private Context
436
Non-Commercial Production and Exchange
442
Zoning and the Sharing Economy
445
Moral to This Story
447
ch. Nine
New Relationships With Land And Housing
463
pt. 1
Building Economically Sustainable Relationships with Land
463
Unpacking the Bundle of Rights
464
When Land Is Not Shared
465
Solutions Addressed Here
467
Common Goals of Clients
468
pt. 2
Solutions: Sharing Use, Management, and/or Financing
471
That Bundle Is Toooo Large, This Bundle Is Toooo Small
471
Sharing Space
472
Sharing Management
473
Sharing Financing
475
pt. 3
Agreements and Organizations to Share Property Rights
477
Common Configurations
477
Few Considerations in Drafting Agreements and Forming Organizations
492
Forming and Structuring Organizations
503
pt. 4
Navigating Public Laws
515
Land Use and Zoning
516
Landlord/Tenant Laws
518
Inclusionary Housing Laws
526
Regulations on Hotels, Hostels, Boarding Houses, and Temporary Stays
526
Laws Governing the Sale of Subdivided Properties
527
Laws Governing Community Associations
528
Building and Fire Codes
529
Fair Housing Laws
530
Property Taxes and Property Tax Exemption
531
ch. Ten
New Approaches To Intellectual Property
535
pt. 1
Intellectual Property and Sharing
536
What Is Intellectual Property?
536
Four Major Forms of Intellectual Property
536
Why Does Intellectual Property Exist?
536
Sharing in the World of Intellectual Property
537
License Agreement
537
Word About the Public Domain
537
pt. 2
Sharing and Copyright Law
538
Copyright Law Basics
538
Infringement and Damages
538
Innovations in Open Sourcing
539
Creative Commons Licenses
540
Other Approaches with Licenses---Crowdsourcing
542
Public Domain Commons
542
pt. 3
Sharing and Patent Law
544
Patent Law Basics
544
Humanitarian Licenses
545
Other Efforts Related to Humanitarian Licenses
549
Patent Commons
549
Freeing an Invention Completely
549
pt. 4
Sharing and Trademark Law
550
Collective Marks
550
Certification Marks
551
Avoiding the "Naked License" When Sharing Trademarks
552
ch. Eleven
New Approaches To Risk And Liability
555
pt. 1
Sharing Economy/Sharing Risk/Sharing Responsibility
555
Loss Is Scary, but Uncertainty Is Scarier
555
Taking Risks in a Sharing Economy
556
Being Careful in the Sharing Economy
558
Advocating for Laws That Encourage Sharing
561
pt. 2
Making Agreements
564
Ingredients of Risk Management Agreements
564
Common Agreements for Sharing Economy Clients
565
Forming Limited Liability Entities
569
pt. 3
Insurance
570
Adapting Insurance to the Sharing Economy
573
Index
575
About the Author
609