Apple Pay, Bitcoin, and Consumers: The ABCs of Future Public Payments Law

As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems, exemplified by Articles 3 and 4 of the Uniform Commercial Code, has faded in relevance, while federal law has grown in a specialized consumer protection role. Meanwhile, private contract law has expanded to fill gaps where payment technology has exceeded the scope of public law. The evidence of the successes and failures of payments law in the face of rapid technological development shows that the field is not best governed by comprehensive public regulation on the Uniform Commercial Code model, but that public law still has an important, albeit narrower, role for the future. The most beneficial paradigm for governance of payment systems is a division between (1) private law handling systemic matters of operation, and (2) public law focused on protecting payment system end-users from oppression, fraud, and mistake. This demarcation of lawmaking responsibilities has the greatest track record of success and is the most capable of dealing with a foreseeable future of unforeseeable innovations

Who Wants to Be a Muggle? The Diminished Legitimacy of Law as Magic

In the Harry Potter world, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and is necessitated by centuries-old hostility to wizards by the non-magical majority. The reasons behind this hostility, when combined with the similarities between Harry Potter-stylemagic and American law, make Rowling’s novels into a cautionary tale for the legal profession that it not treat law as a magic unknowable to non-lawyers. Comprehensibility — as a self-contained, normative value in the enactment interpretation, and practice of law — is given short-shrift by the legal profession. It deserves a far higher place of honor in the law of a liberal republic than it holds today, and lawyers above all ought not to underestimate the importance of this value. In the end, it behooves all in the legal wizards’ craft to make more concerted efforts in writing and in drafting of governing legal texts to aid the non-lawyer public in understanding them. Who wants to be a Muggle? No one, really. The ongoing and critical task of the legal profession is to ensure that governing legal texts and lawyers’ treatment of them do not suffer the vices that “make” non-lawyers into Muggles

Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This article contends that this political failure within the simultaneous success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred, not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that “no one is above the law” and the related ideal of maintaining “a government of laws, and not of men.” Proposed section 1-301 transgressed those ideals by taking something labeled as “law” and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not — to an American audience — make sense in theory

Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This article contends that this political failure within the simultaneous success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred, not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that “no one is above the law” and the related ideal of maintaining “a government of laws, and not of men.” Proposed section 1-301 transgressed those ideals by taking something labeled as “law” and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not — to an American audience — make sense in theory

Access to Law or Access to Lawyers? Master’s Programs in the Public Educational Mission of Law Schools

The general decline in juris doctor (“J.D.”) law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as master of jurisprudence, juris master, master of legal studies, or other names, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This Article argues that non-lawyer master’s programs are not a distraction from the public mission of law schools, nor are they a necessary evil foisted upon legal education by economic trends. Rather, such degrees reflect a paradigm shift that law schools and attorneys should embrace rather than resist: a move away from law being accessed primarily through a licensed elite and toward a greater role for autonomy in public engagement with the legal system. The law school function of serving the public goes well beyond training future lawyers or even marshalling them in the service of access to justice. The expanded legal education vision advocated here includes those functions, but as part of a more encompassing mission. Law schools should aim to ensure access to law rather than simply access to lawyers. This Article then sets forth foundational frameworks for such programs to succeed at their goals, both at the programmatic level and at the course-design level

Without Precedent: Legal Analysis in the Age of Non-Judicial Dispute Resolution

For more than a century, the American system of legal education has predominantly emphasized the role of cases and judge-made law, but with the understanding that the craft of the lawmaking judge is constrained by the doctrine of stare decisis. This case-oriented approach to teaching law extends to statutes: students learn of the role of courts in interpreting and explaining statutes, making judicial construction of statutes part-and-parcel of statutory law. Thus, pervading the formative first year of law school is the assumption that the role of lawyers is principally to analyze what courts have done in the past in order to predict what stare decisis-constrained courts will likely do in the future. Even outside of pure common law, statutory interpretation is principally a judicial function. This article describes the extent to which these assumptions are incorrect and suggests steps that we in law teaching should take to adapt our classroom approach accordingly. Two areas best illustrate the growing falsity of these assumptions about stare decisis and statutory interpretation that law students are taught in their first year of law school. The first such area is when administrative agencies engage in non-judicial adjudication of cases and promulgating regulations. The second area is that in which contracting parties have their disputes determined by an arbitrator instead of a judge. The government agency and private arbitrator have one thing in common: the broad swath of their interpretations and applications of prior law tends to be unassailable and will likely be the last word on the matter, even if their actions are at gross variance with what a court would have been obligated to do as a matter of law. Our teaching of legal analysis should better reflect this reality of law practice. In a sense, practitioners today are likely to appear before some judge who will grapple with fixed statutes but who is not necessarily bound by stare decisis. Put another way, many cases now should be approached by prudent practitioners as though they are questions of first impression, even when they are not. Part II of this article considers the ubiquitous role of stare decisis as an underlying paradigm in the first year of law school, with a particular focus on the interrelation of that common law doctrine and statutory interpretation. Next, Part III describes the increasing displacement of stare decisis as a controlling limitation in American law, most notably in administrative law and arbitration. Part IV evaluates the value of the traditional judicial framework for legal instruction in light of its substantial inaccuracy, concluding that stare decisis must remain prominent but that changing realities of law practice require it to play a lesser role. Our students must learn the ability to think outside the stare decisis box while maintaining the ability to be constrained by it. This article concludes that the precedent-oriented methodology we typically employ for teaching legal analysis in first-year courses—especially in the first-year legal writing course—is, despite being well-meaning and pedagogically sound, increasingly dishonest. Stepping away from the myopic focus on stare decisis and incorporating a more robust concept of non-judicial statutory interpretation into our first-year courses are ultimately the best remedies for this problem

Without Precedent: Legal Analysis in the Age of Non-Judicial Dispute Resolution

For more than a century, the American system of legal education has predominantly emphasized the role of cases and judge-made law, but with the understanding that the craft of the lawmaking judge is constrained by the doctrine of stare decisis. This case-oriented approach to teaching law extends to statutes: students learn of the role of courts in interpreting and explaining statutes, making judicial construction of statutes part-and-parcel of statutory law. Thus, pervading the formative first year of law school is the assumption that the role of lawyers is principally to analyze what courts have done in the past in order to predict what stare decisis-constrained courts will likely do in the future. Even outside of pure common law, statutory interpretation is principally a judicial function. This article describes the extent to which these assumptions are incorrect and suggests steps that we in law teaching should take to adapt our classroom approach accordingly. Two areas best illustrate the growing falsity of these assumptions about stare decisis and statutory interpretation that law students are taught in their first year of law school. The first such area is when administrative agencies engage in non-judicial adjudication of cases and promulgating regulations. The second area is that in which contracting parties have their disputes determined by an arbitrator instead of a judge. The government agency and private arbitrator have one thing in common: the broad swath of their interpretations and applications of prior law tends to be unassailable and will likely be the last word on the matter, even if their actions are at gross variance with what a court would have been obligated to do as a matter of law. Our teaching of legal analysis should better reflect this reality of law practice. In a sense, practitioners today are likely to appear before some judge who will grapple with fixed statutes but who is not necessarily bound by stare decisis. Put another way, many cases now should be approached by prudent practitioners as though they are questions of first impression, even when they are not. Part II of this article considers the ubiquitous role of stare decisis as an underlying paradigm in the first year of law school, with a particular focus on the interrelation of that common law doctrine and statutory interpretation. Next, Part III describes the increasing displacement of stare decisis as a controlling limitation in American law, most notably in administrative law and arbitration. Part IV evaluates the value of the traditional judicial framework for legal instruction in light of its substantial inaccuracy, concluding that stare decisis must remain prominent but that changing realities of law practice require it to play a lesser role. Our students must learn the ability to think outside the stare decisis box while maintaining the ability to be constrained by it. This article concludes that the precedent-oriented methodology we typically employ for teaching legal analysis in first-year courses—especially in the first-year legal writing course—is, despite being well-meaning and pedagogically sound, increasingly dishonest. Stepping away from the myopic focus on stare decisis and incorporating a more robust concept of non-judicial statutory interpretation into our first-year courses are ultimately the best remedies for this problem

Raising a Spectre: Using the Ghost of Law Practice Future to Sell Statutory Analysis Today

payment systems, Uniform Commercial Code, bitcoin, virtual currency, cryptocurrency, digital currency, mobile payments, Apple Pay, contracts, credit cards, debit cards, TILA, EFTA, automated clearing house, ACH, NACHA, private law, private ordering, public law, consumer protection, commercial la

Who Wants to Be a Muggle? The Diminished Legitimacy of Law as Magic

In the Harry Potter world, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and is necessitated by centuries-old hostility to wizards by the non-magical majority. The reasons behind this hostility, when combined with the similarities between Harry Potter-stylemagic and American law, make Rowling’s novels into a cautionary tale for the legal profession that it not treat law as a magic unknowable to non-lawyers. Comprehensibility — as a self-contained, normative value in the enactment interpretation, and practice of law — is given short-shrift by the legal profession. It deserves a far higher place of honor in the law of a liberal republic than it holds today, and lawyers above all ought not to underestimate the importance of this value. In the end, it behooves all in the legal wizards’ craft to make more concerted efforts in writing and in drafting of governing legal texts to aid the non-lawyer public in understanding them. Who wants to be a Muggle? No one, really. The ongoing and critical task of the legal profession is to ensure that governing legal texts and lawyers’ treatment of them do not suffer the vices that “make” non-lawyers into Muggles