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2 Stan. J. Blockchain L. & Pol'y 1 (2019)

handle is hein.journals/sjblp2 and id is 1 raw text is: THE PERSISTENCE OF DUMB CONTRACTS Jeffrey M. Lipshaw* ABSTRACT Smart contracts are a hot topic. Presently, smart contracts are mostly evidence of property, like cryptocurrencies or mortgages, created and/or transferred using blockchain technology. This is an exploration of the theoretical possibilities of artificial intelligence in a far broader range of complex and heretofore negotiated transactions that occur over time. My goal is to understand what it means to make a contract smarter. i.e. to delegate more and more of the creation. performance, and disposition of legally binding transactions to machine thinking. Moreover. I want to do so from the perspective of one who is neither a true believer in the purported technological singularity to come nor a digital Luddite. There are two primary themes. First, the extent to which complex transactions occurring over time can be embodied in computer programs the ability of the contracts to be smarter rather than dumber-depends on the extent to which the subject of the transaction becomes not just a social fact. but an institutional reality. The dumb contract is merely a map of an antecedent reality, but the smart one is a real thing in itself. Second, smart rather than dumb contracts will require the translation of often fuzzy legal predicates. otherwise capable of expression in truth-functional logic. into digital proxies expressible in the non-ambiguous discrete units of code. The upshot of these two themes is that, at least until there is some better evidence that a technological singularity will occur. deciding will remain something that is fundamentally different than reasoning by way of logic or * Professor of Law. Suffolk University Law School A.B. 1975. University of Michigan; J.1. 1979, Stanford Law School Thanks to the follow ing for comments at various stages of development of the ideas presented here: Brian Bix, Clare Prober, Steve Mciohn, Pat Shin, Frank Snyder, Hilary Allen, Michael Rustad, Andy Perlman, Joh Infranca, im Hazard, Thomas Hardjono. Helena Haapio, Miriam Cherry, and Bob Hillman. The organizers of the 13th International Contracts Conference, known as K-CON, and, in particular Daniel O'Gorman at Barry University in Orlando, Florida, Sere kind enough to allow me to present a not-fully-baked version of this thesis in February 2018s 1 received many helpful comments and encouragement from the K-CON participants. 1

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