Florence2024(groupphoto)

On Monday, I had the good fortune to be able to share some of my research and ideas with an international audience (photo above, taken at the European University Institute in Fiesole/Florence, Italy) on Monday.  The topic?  Smart-contracting as an alternative to traditional business contracting. Here's the nub of what I offered, taken from my abstract (minus the footnotes).

Business transactions have historically been memorialized, if at all, in contracts—legally recognized forms of agreement that, if valid and binding, have the capacity to be enforced through judicial process. These contracts enable business firms to engage in private ordering relative to firm governance, investment activity, business combinations, intellectual property licensing, asset purchases and dispositions, and many other commercial dealings. Contracts have been essential to business governance, finance, and operations for centuries.

The advent of digital commerce has brought many innovations to business transacting. Click-wrap, browse-wrap, scroll-wrap, and sign-in-wrap forms of indicating the acceptance of contractual terms of use on the Internet have become commonplace. As a result, these inventions have been the subject of cases and controversies and related judicial opinions. “The courts in the electronic world search for the functional equivalent of the paper world's formal requirements of a reasonable presentation of terms and a manifestation of assent, despite the recognition in both worlds that consumers do not read the terms.”

In recent years, blockchain transactions fashioned using smart contracts have begun to be interchangeable with aspects of traditional contracting in some business contexts. They may interact with or supplant aspects of conventional business contracting, and they may share common elements with traditional legal contracts. “Enthusiasts have suggested that smart contracts might eventually replace legal contracts for some applications.” Business transaction participants often are aware of the value of contracting on blockchains, and their legal counsel should be knowledgeable about blockchains and smart contracts and the nomenclature to maintain their competence as trusted, responsible professional advisors.

 . . .

[M]y work in this area canvases and explores ways in which blockchain technology intersects with business transactions—including, as a current example, U.S. NIL arrangements and practices—and regulation.  An inspection of the overlap of this popular technology with business transaction planning and implementation offers both opportunities for creative innovation and causes for concern among lawyers, their clients, regulators, and others.  Since both blockchains and business transactions are omnipresent, my work is designed to reflect on possible ways to address downsides of blockchain transactions while preserving upsides.  Consideration is being given to the goals and risk preferences of parties to business transactions and potential regulators, as well as the professional responsibility and leadership capacity of lawyers working on business transactions and related regulation.

I will be working on and off on papers emanating from these ideas.  If you are working in this space, too, please let me know and offer me references to any published pieces.  My two priority areas for near-term articles are on blockchain NIL agreements and blockchain white collar crime.  But there is much more to write ab0ut here . . . .

I am grateful to the participants in the workshop for their excellent thoughts and their encouragement.  Also, I appreciate the superior job that Vanessa Villanueva Collao did in organizing and chairing this forum, as well as the generosity of the European University Institute in sponsoring and providing a location for our work.  I learned many new things at this program–including things about U.S. law (from a foreign colleague!)–that I did not earlier know.

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Photo of Joan Heminway Joan Heminway

Professor Heminway brought nearly 15 years of corporate practice experience to the University of Tennessee College of Law when she joined the faculty in 2000. She practiced transactional business law (working in the areas of public offerings, private placements, mergers, acquisitions, dispositions, and…

Professor Heminway brought nearly 15 years of corporate practice experience to the University of Tennessee College of Law when she joined the faculty in 2000. She practiced transactional business law (working in the areas of public offerings, private placements, mergers, acquisitions, dispositions, and restructurings) in the Boston office of Skadden, Arps, Slate, Meagher & Flom LLP from 1985 through 2000.

She has served as an expert witness and consultant on business entity and finance and federal and state securities law matters and is a frequent academic and continuing legal education presenter on business law issues. Professor Heminway also has represented pro bono clients on political asylum applications, landlord/tenant appeals, social security/disability cases, and not-for-profit incorporations and related business law issues. Read More