Conceptualizing Cryptolaw

I. Introduction II. A Distributed Ledger Technology Primer ... A. Distributed Ledger Technology: Bitcoin’s Blockchain, Ethereum, and Beyond ... B. A Brief Introduction to Smart Contracts III. Defining Cryptolaw ... A. Distributed Ledger Technology Will Lead to Cryptolaw ... B. Three Possible Methods of Adopting Crypto-Legal Structures ... 1. Government Adoption of Industry-Created Crypto-Legal Structures ... 2. Crypto-Legal Structures Directly Coded by Government ... 3. International Development of Crypto-Legal Structures ... C. More than Just Another “Law of the Horse” IV. Conceptualizing Cryptolaw as Disruptive Legal Discourse ... A. Disruption of Substantive Law ... 1. Simplification of Substantive Law ... 2. Emergence of New Regulatory Actors ... B. Disruption of Legal Structure … 1. Disruption of Established Patterns of Enforcement and Related Regulatory Policy Choices ... 2. Disruption of Choices in Legal Forms ... C. Disruption of Legal Culture ... 1. Cryptolaw Envisions a World Without Law Lag ... 2. Cryptolaw Anticipates That Developers Writing Code May Determine Crypto-Legal Culture More than Lawyers V. Challenges, Implications, and Consequences of Adopting Crypto-Legal Structures ... A. Drawing Boundaries Around Cryptolaw’s Scope ... B. Expecting Unexpected Results ... C. Cryptolaw Will Encourage Discourse Regarding Alternative Governance Models VI. Conclusio

Autonomous Business Reality

Society tends to expect technology to do more than it can actually achieve, at a faster pace than it can actually move. The resulting hype cycle infects all forms of discourse around technology. Unfortunately, the discourse on law and technology is no exception to this rule. The resulting discussion is often characterized by two or more positions at opposite ends of the spectrum, such that participants in the discussion speak past each other, rather than to each other. The rich context that sits in the middle ground goes disregarded altogether. This dynamic most recently surfaced in the legal literature regarding autonomous businesses. This Article seeks to fill the gap in the current discussion by creating a taxonomy of autonomous businesses and using that taxonomy to demonstrate that automation, standing alone, is not what makes autonomous businesses exceptional. Rather, the capacity of autonomous businesses to make radical governance changes more prevalent in the market pushes the boundaries of current choice of entity and governance paradigms while also illuminating low-technology functional equivalents that may offer more traditional businesses a path to governance reform. To make these claims, this Article begins in Part I by briefly introducing the two emerging technologies that enable business automation. Part II reviews the existing literature and argues that by focusing on only one specific segment of the current autonomous business landscape, the literature misses key opportunities to evolve business law. Part III builds a map of existing autonomous businesses, demonstrating the differences among them and explaining them as a function of design trade-offs. Part III then uses that map to build a taxonomy of autonomous businesses and offers a framework for considering the broader impacts of autonomous businesses on law. Part IV examines ways that autonomous business reality may incentivize reforms in traditional corporations while simultaneously emphasizing the need for continued research and innovation in choice of business entity, organizational governance, and regulatory compliance

Emerging Technology’s Language Wars: Cryptocurrency

Work at the intersection of blockchain technology and law suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, legal researchers, lawmakers, researchers in the technical sciences, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates related to developing regulation in one specific area of the blockchain technology ecosystem: cryptocurrency. Using cryptocurrency as a case study reveals the delicate balance necessary to develop law in even the best popularly understood area of blockchain technology. In doing so, the Article demonstrates that corpus linguistics offers a tool for identifying specific linguistic ambiguities before they are embedded in law, ultimately enhancing the clarity, predictability, and coherency of the regulatory regimes to which cryptocurrency is subject

Autonomous Corporate Personhood

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the two only rarely overlap. As a result of this failure to communicate, both areas of personhood theory fail to account for the important role that socio-technical and socio-legal context plays in law and policy development. This Article fills the gap by investigating the limits of artificial rights at the intersection of corporations and artificial intelligence. Specifically, this Article argues that building a comprehensive legal approach to artificial rights—rights enjoyed by artificial people, whether corporate entity, machine, or otherwise—requires approaching the issue through a systems lens to ensure that the legal system adequately considers the varied socio-technical contexts in which artificial people exist. To make these claims, this Article begins by establishing a terminology baseline, and emphasizing the importance of viewing AI as part of a socio-technical system. Part I then concludes by reviewing the existing ecosystem of autonomous corporations. Parts II and III then examine the existing debates around artificially intelligent persons and corporate personhood, arguing that the socio-legal needs driving artificial personhood debates in both contexts include: protecting the rights of natural people, upholding social values, and creating a fiction for legal convenience. Parts II and III also explore the extent to which the theories from either set of literature fits the reality of autonomous businesses, illuminating gaps and using them to demonstrate that the law must consider the socio-technical context of AI systems and the socio-legal complexity of corporations to decide how autonomous businesses will interact with the world. Ultimately, the Article identifies and leverages links between both areas of legal personhood to demonstrate the Article’s core claim: developing law for artificial systems in any context should use the systems nature of the technical artifact to tie its legal treatment directly to the system’s socio-technical reality

Emerging Technology’s Language Wars: Smart Contracts

Work at the intersection of blockchain technology and law represents a highly interdisciplinary area of inquiry. Often, researchers, law-makers, lawyers, and other stakeholders unnecessarily debate issues because of linguistic misunderstandings. As the third of four studies examining the impact of clashes of linguistic meaning on law and policy around emerging technologies, this Essay uses smart contracts as a case study to demonstrate the real legal harm that arises from a failure to communicate. Specifically, this Essay uses techniques from corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates as to whether the law should “accommodate” smart contracts. This Essay’s approach also further contributes evidence that corpus linguistics might be particularly effective as a tool for identifying linguistic ambiguities before they are embedded in law, rather than as a tool for resolving ambiguities after the fact. In the smart contract context, resolving such ambiguities early frees law to focus on the interesting and new issues the technology actually presents, rather than ineffectively future-casting for a use case most of industry does not actually seek to develop

Emerging Technology’s Language Wars: AI and Criminal Justice

Work at the intersection of Artificial Intelligence systems (AI systems) and criminal justice suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, researchers, lawmakers, software developers, engineers, judges, and the public all talk past each other, using the same words but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal inherent value conflicts embedded in definitional differences and debates. Doing so offers a tool for reconciling specific linguistic ambiguities before they are embedded in law and ensures more effective communication of the technical pre-requisites for AI systems that, by design, seek to achieve their intended purpose while also upholding core democratic values in the criminal justice system

Emerging Technology\u27s Language Wars: Cryptocurrency

Work at the intersection of blockchain technology and law suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, legal researchers, lawmakers, researchers in the technical sciences, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates related to developing regulation in one specific area of the blockchain technology ecosystem: cryptocurrency. Using cryptocurrency as a case study reveals the delicate balance necessary to develop law in even the best popularly understood area of blockchain technology. In doing so, the Article demonstrates that corpus linguistics offers a tool for identifying specific linguistic ambiguities before they are embedded in law, ultimately enhancing the clarity, predictability, and coherency of the regulatory regimes to which cryptocurrency is subject

Emerging Technology\u27s Unfamiliarity with Commercial Law

Over the course of a three-year, collaborative process that was open to the public, the Uniform Law Commission (ULC) and the American Law Institute (ALI) undertook a project to revise the Uniform Commercial Code (UCC) to account for the impact of emerging technologies on commercial transactions. The amendments, approved jointly by the ULC and ALI in July 2022, touch on aspects of the entire UCC, but one change has inspired ire and attracted national media attention: a proposed revision to the definition of “money.” The 2022 UCC Amendments alter the definition of “money” to account for the introduction of central bank digital currencies, such as the Bahamian Sand Dollar, and create a separate asset classification category for cryptocurrencies such as bitcoin—the controllable electronic record. Opponents of this change state concern that the UCC seeks to “ban” cryptocurrency or otherwise advantage central bank digital currencies and disadvantage cryptocurrencies. This essay examines this dispute over the 2022 UCC Amendments, and argues that it stems from a misunderstanding of core commercial law concepts. Ultimately, it seems, diminishing familiarity with commercial law—a side effect of expanding reliance on emerging financial technology products—stands as a key obstacle to the enactment of a legal changes designed to give the objectors the very legal effects they desire

Uncovering Elon\u27s Data Empire

In 2022, Elon Musk publicly announced that he would purchase Twitter after acquiring a five percent stake in the company. His failure to report this acquisition—and the company’s failure to notice—allowed Musk to continue purchasing stock at a deflated price, costing the company more than $156 million. After the signing of a merger agreement, the details of the transaction caused wild fluctuations in Tesla’s stock price. Musk’s complaints about the management of Twitter and the existence of bots on the platform led Twitter’s stock to also drop in value, as did Musk’s attempts to withdraw from the transaction. Even after the deal closed, many commentators noted their concern that the shareholders of two corporations saw the value of their investments impacted by the whims of one billionaire. But is that the whole story?At some point in the Musk-Twitter saga, Musk claimed that the number of bots on the Twitter platform devalued the company sufficiently that he should be let out of the transaction altogether. At the time, most observers did not take Musk’s complaints about bots seriously. But what if, instead of just being a silly excuse, Musk’s complaints about bots on Twitter were a tell? What if, they were a hint about a deeper business strategy with a potential to impact capital markets in as yet unanticipated ways? This Article examines the connections between Musk’s many business ventures and argues that Musk’s emphasis on bots on Twitter points toward the one, nearly stealth connecting factor in his businesses: data collection and monetization. By uncovering Musk’s data empire, the Article also reveals key data blind spots in the federal laws meant to govern capital markets and argues that state law offers a better avenue for reigning in the negative externalities of data-driven mergers—mergers and acquisitions undertaken primarily to gain access to the data and data exhaust produced by the target company