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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. [ABSTRACT FROM AUTHOR]

The current discussions around algorithms, legal ethics, and expanding legal access through technological tools gravitate around two themes: (1) protection of the integrity of the legal profession and (2) a desire to ensure greater access to legal services. The hype cycle often pits the desire to protect the integrity of the legal profession against the ability to use algorithms to provide greater access to legal services, as though they are mutually exclusive. In reality, the arguments around protecting the profession from the threats posed by algorithms represent an over-fit in relation to what algorithms can actually achieve, while the visions of employing algorithms for access to justice initiatives represent an under-fit in relation to what algorithms could provide. A lack of precision about algorithms results in blunt protections of professional integrity leaving little room for the potential benefits of algorithmic tools. In other words, this incongruence persists because of imprecise understandings and unrealistic characterizations of the algorithmic technologies and how they fit within the broader technology of law itself. This Article provides an initial set of tools for empowering lawyers with a better understanding of, and critical engagement with, algorithms. With the goal of encouraging a more nuanced discussion around the ethical dimensions of using algorithms in legal technology--a discussion that better fits technological reality--the Article argues for lawyers and non-technologists to shift away from evaluating legal technology through a lens of mere algorithms--as though they can be evaluated outside of a specific context--to a focus on understanding algorithmic systems as technology created, manipulated, and used in a particular context. To make this argument, this Article first reviews the current use of algorithms in legal settings, both criminal and civil, reviewing the related literature and regulatory responses. This Article then uses the shortcomings of legal technology lamented by the current literature and the related regulatory responses to demonstrate the importance of shifting our collective paradigm from a consideration of law and algorithms to law and algorithmic systems. Finally, this Article offers a framework for use in assessing algorithmic systems and applies the framework to algorithmic systems employed in the legal context to demonstrate its usefulness in accurately separating true tensions from those that merely reverberate through the hype cycle. In using the framework to reveal areas at the intersection of law and algorithms truly most ripe for progress, this Article concludes with a call to action for more careful design of both legal systems and algorithmic ones. [ABSTRACT FROM AUTHOR]

Public blockchain protocols face a serious governance crisis. Thus far, blockchain protocols have followed the path of early internet governance. If the architects of blockchain protocols are not careful, they may suffer a similar fate--increased governmental control, greater centralization, and decreased privacy. As blockchain architects begin to consider better governance structures, there is a legal movement underway to impose a fiduciary framework on open-source software developers. If the movement succeeds, the consequences for open-source software development could be dire. If arbitrarily imposed on blockchain communities without consideration of variances among communities or the reality of how such communities operate, the movement may quash the technology before it ever matures. Further, in its present iteration, the argument for imposing fiduciary duties is not limited to the blockchain context and could easily be extended to other open-source projects. Such open-source projects have not been subject to this fiduciary responsibility scheme and yet have been an important force in industry and society for decades. Instead, this Article argues that blockchain architects should consider adopting governance contracts that rely on corporate governance models for inspiration. Such a model would not obliterate the notion of fiduciary responsibilities in blockchain governance but rather would allocate such responsibility in light of the actual mechanics of the technology. The model also enables a scheme that heightens responsibility for more actors in the ecosystem under certain circumstances. Furthermore, contractually based governance systems offer blockchain protocols an opportunity to adopt governance rules that reflect the unique goals and culture of the protocols and their communities while appeasing the regulator's need for a legally recognizable and responsible hierarchy. Although there will be cultural challenges to governing blockchain protocols under a corporate law model, this Article not only concludes that navigating such challenges is possible but also offers an opportunity to encourage new corporate governance structures in more traditional enterprises. [ABSTRACT FROM AUTHOR]

The Ethereum Decentralized Autonomous Organization ("The DAO"), a decentralized, smart-contract-based investment fund with assets of $168 million, spectacularly crashed when one of its members exploited a flaw in its computer code and siphoned off $55 million. In the wake of the exploit, many argued that participants in The DAO could be jointly and severally liable for the loss as partners in a general partnership. Others claimed that The DAO evidenced an entirely new form of business entity, one that current laws do not contemplate. Ultimately, the technologists cleaned up the exploit by restructuring the computer code, and without engaging in any further legal analysis, many simply concluded that The DAO, other decentralized autonomous organizations, and the Ethereum protocol itself signify opportunities to do away with legal business-organizational forms as they presently exist. In this Article, I argue that precisely the opposite is true. Instead of creating a new type of corporate entity through computer code, The DAO and other smart-contractbased organizations may resurrect a very old, frequently forgotten business entity--the business trust--which Rockefeller used to solve the technology-business organization law divide of his time. This Article offers the first analysis of blockchain-based business ventures under business organization law at three separate levels of the technology: protocols, smart contracts, and decentralized autonomous organizations. The Article first reveals the practical and theoretical deficits of using partnership as the only common-law entity option for blockchain-based business ventures. The Article then demonstrates that incorporation and limited liability company ("LLC") formation will also pose both practical and doctrinal difficulties for some such businesses. When faced with a similar conundrum in the 19th century, Rockefeller turned to the common-law business trust as a substitute business entity. This Article argues that if Rockefeller were a coder building a blockchain-based business, he would again turn to the business trust as his choice of entity. The Article concludes by considering, in light of Rockefeller's history, whether the law should anticipate any challenges with the rise of blockchain-based business trusts. [ABSTRACT FROM AUTHOR]