The Historical Context of Stock Settlement and Blockchain

n 1968, the U.S. stock market collapsed. 1 It did not flatline, of course, but major markets closed every Wednesday in an event now known as the \u27Wall Street Paperwork Crisis.\u27 2 This seizure was not caused by problems at the front end of a trade; brokers and dealers could easily keep up with the various client orders to buy or sell stock. Rather, the difficulties arose from back-end bottlenecks that occurred during the clearing and settlement process—the method by which a share of stock is transferred from seller to buyer. 3 This two-step process is necessary because the initial moment of contracting—the trade—is not executed on an instantaneous basis. The shares are exchanged later, thereby fulfilling the contractual commitment, via a settlement and clearing process that is often described as the \u27back-office plumbing\u27 of securities markets.

Traceable Shares and Corporate Law

A healthy system of shareholder voting is crucial for any regime of corporate law. The proper allocation of governance power is subject to debate, of course, but the fitness of the underlying mechanism used to stuff the ballot boxes should concern everyone. Proponents of shareholder power, for instance, cannot argue for greater control if the legitimacy of the resulting tallies is suspect. And those who advocate for board deference do so on the bedrock of authority that reliable shareholder elections supposedly confer. Unfortunately, our trust in the corporate franchise was forged during an era that predates modern complexities in the way that stock ownership is now tracked and traded. We do not trace shares, and any clear-eyed look at the conferral of voting rights via back-end stock clearing practices is unsettling. Evidence of the various entanglements crops up from time to time—in the form of questionable voting outcomes or disputes about standing for shareholder lawsuits—but the underlying problems are systemic, not episodic. Our stock clearing system is a kludge. This is an important moment for corporate law, however, because new technology is approaching a state where clearing and settlement systems may soon support traceable shares. The rise of distributed ledgers and blockchain technology is poised to allow for specific share identification and precise records of share provenance. This may sound like an uninteresting technical sideshow, but as this Article will argue, the impact of traceable shares on corporate law will be profound. It will change the structure of shareholder lawsuits, alter the allocation of corporate governance rights, and require lawmakers to rethink fundamental principles of shareholder responsibility for corporate misdeeds