Werbach and Cornell, ‘Contracts Ex Machina’

Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Can smart contracts offer a superior solution to the problem that contract law addresses? In this article, we aim to understand both the potential and the limitations of smart contracts. We conclude that smart contracts offer novel possibilities, may significantly alter the commercial world, and will demand new legal responses. But smart contracts will not displace contract law. Understanding why not brings into focus the essential role of contract law as a remedial institution. In this way, smart contracts actually can illuminate the role of contract law more than they can obviate it.

Werbach, Kevin D and Cornell, Nicolas, Contracts Ex Machina (March 18, 2017). 67 Duke Law Journal, forthcoming.

First posted 2017-03-22 08:33:59

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