¹ Section II below.

² M. Fenwick and E.P.M. Vermeulen, “Technology and Corporate Governance: Blockchain, Crypto, and Artificial Intelligence”, ECGI Working Paper no. 424/2018, 8–12, available at https://ssrn.com/abstract=3263222 (last accessed 12 August 2020). See also L. Enriques and D.A. Zetzsche, “Corporate Technologies and the Tech Nirvana Fallacy”, ECGI Working Paper no. 457/2019, 14–15, available at https://ssrn.com/abstract=3392321 (last accessed 12 August 2020) (Hastings Law Journal, forthcoming); Hamdani, A., Kandel, N. Hashai, E. and Yafeh, Y., “Technological Progress and the Future of the Corporation” (2018) 6 Journal of the British Academy 215, 223–25CrossRefGoogle Scholar.

³ Geis, G.S., “Traceable Shares and Corporate Law” (2018) 113 Northwestern University Law Review 227Google Scholar, 267.

⁴ Enriques and Zetzsche, “Corporate Technologies”, 7. See also O'Neil, C., Weapons of Math Destruction (New York 2016), 207–08Google Scholar; Pasquale, F., The Black Box Society: The Secret Algorithms that Control Money and Information (Cambridge, MA 2015), 107CrossRefGoogle Scholar; A. Dignam, “Artificial Intelligence: The Very Human Dangers of Dysfunctional Design and Autocratic Corporate Governance”, Queen Mary University of London, School of Law Legal Studies Research Paper No. 314/2019, 2–11, available at https://ssrn.com/abstract=3382342 (last accessed 12 August 2020).

⁵ Section II below.

⁶ Pasquale, Black Box Society, 196. See also Dignam, “Artificial Intelligence”, 8–9; C. Markou and S. Deakin, “Ex Machina Lex: The Limits of Legal Computability”, 3–4, available at https://ssrn.com/abstract=3407856 (last accessed 28 August 2020).

⁷ Millon, D., “Communitarianism in Corporate Law: Foundations and Law Reform Strategies” in Mitchell, L.E. (ed.), Progressive Corporate Law (Boulder, CO 1995), 1Google Scholar, 7 (describing contractarianism's “libertarian premise” that “consent should be the sole basis for obligation”).

⁸ Cf. O'Neil, Weapons of Math Destruction, 47 (observing “all kinds of parallels between finance and Big Data”, including “the fallacious conclusion that whatever they're doing to bring in more money is good”, or “why would the market reward it?”).

⁹ Sections III and IV below.

¹⁰ C.M. Bruner, Corporate Governance in the Common-law World: The Political Foundations of Shareholder Power (Cambridge 2013); C.M. Bruner, “The Enduring Ambivalence of Corporate Law” (2008) 59 Alaska Law Review 1385.

¹¹ W.T. Allen and R. Kraakman, Commentaries and Cases on the Law of Business Organization, 5th ed. (New York 2016), 284; R.A. Ragazzo and F.S. Fendler, Closely Held Business Organizations: Cases, Materials, and Problems, 2nd ed. (St. Paul, MN 2012), 1–2. See also M. Moore and M. Petrin, Corporate Governance: Law, Regulation and Theory (London 2017), 10–16.

¹² Section II(A) below.

¹³ Section II(B) below.

¹⁴ Sections III and IV below. The article further assumes that these constituencies will not themselves have literally merged with artificial intelligence via chips in their brains. M. Scaturro, “Elon Musk Is Making Implants to Link the Brain with a Smartphone”, CNN, available at https://www.cnn.com/2019/07/17/tech/elon-musk-neuralink-brain-implant/index.html (last accessed 12 August 2020); T. Telford, “Elon Musk Wants to Get Inside Your Head. Literally.”, Washington Post, available at https://www.washingtonpost.com/business/2019/07/17/elon-musk-wants-get-inside-your-head-literally/?utm_term=.21b0c70ef694 (last accessed 12 August 2020).

¹⁵ Geis, “Traceable Shares”, 231–35; A. Lafarre and C. Van der Elst, “Blockchain Technology for Corporate Governance and Shareholder Activism”, Tilburg Law School Legal Studies Research Paper No. 07/2018, 12–15, available at https://ssrn.com/abstract=3135209 (last accessed 12 August 2020); J.T. Laster, “The Block Chain Plunger: Using Technology to Clean Up Proxy Plumbing and Take Back the Vote”, 4–6 (29 September 2016) (written version of keynote speech to the Fall 2016 meeting of the Council of Institutional Investors); C. Van der Elst and A. Lafarre, “Blockchain and Smart Contracting for the Shareholder Community”, ECGI Working Paper No. 412/2018, 2–3, 6–7, available at https://ssrn.com/abstract=3219146 (last accessed 12 August 2020).

¹⁶ E.g. In re Appraisal of Dell Inc., 143 A.3d 20, 21–23 (Del. Ch. 2016); In re Dole Food Co., C.A. No. 8703-VCL, 2017 Del. Ch. LEXIS 25, *1–*12 (Del. Ch., 15 February 2017). See also Geis, “Traceable Shares”, 235–51; Laster, “Block Chain Plunger”, 6–8.

¹⁷ Bruner, Corporate Governance, 97–107 (discussing US shareholders’ “far greater practical ability to sue for breaches of fiduciary duty and securities disclosure violations” relative to their Australian, Canadian and UK counterparts).

¹⁸ Delaware Court of Chancery, “Who We Are”, available at https://courts.delaware.gov/chancery/ (last accessed 7 April 2020). See also Delaware Division of Corporations, “Why Businesses Choose Delaware”, available at https://corplaw.delaware.gov/why-businesses-choose-delaware/ (last accessed 7 April 2020) (observing that “more than 60 percent of the Fortune 500 companies are incorporated in Delaware”).

¹⁹ In re Appraisal of Dell Inc., 143 A.3d 20, 23–37.

²⁰ Laster, “Block Chain Plunger”, 10.

²¹ Ibid., at 11–14 (quoting Gil Sparks).

²² C.L. Reyes, N.G. Packin and B.P. Edwards, Distributed Governance” (2017) 59 William and Mary Law Review Online 1, 8–9. See also S. Johnstone, “Regulating Cryptographic Consensus Technology: Oxymoron or Necessity?”, AIIFL Working Paper no. 32, 6–8, available at https://ssrn.com/abstract=3264556 (last accessed 12 August 2020).

²³ Enriques and Zetzsche, “Corporate Technologies”, 10. See also A. Donovan, “Blockchain: Developing Regulatory Approaches for the Use of Technology in Legal Services”, 7–12, available at https://www.legalservicesboard.org.uk/wp-content/uploads/2019/10/Blockchain-Developing-Regulatory-Approaches-for-the-Use-of-Technology-in-Legal-Services.pdf (last accessed 12 August 2020).

²⁴ UK Government Chief Scientific Adviser, Distributed Ledger Technology: Beyond Block Chain (London 2016), 22–24; Donovan, “Blockchain”, 17–18; Reyes et al., “Distributed Governance”, 11–14. See also R. de Caria, “Defining Smart Contracts: The Search for Workable Legal Categories” in N. Aggarwal, H. Eidenmüller, L. Enriques, J. Payne and K. van Zwieten (eds.), Autonomous Systems and the Law (Munich 2019), 27, 29–33.

²⁵ The long-term prospects for digital currencies remain unclear. J. Nancarrow, “Crypto Exchanges Bracing for Impact of Global Bank-Style Rules”, Bloomberg Law, 3 June 2019.

²⁶ S.R. Levine, “The Danger of Not Understanding Blockchain and Its Impact”, Forbes, available at https://www.forbes.com/sites/forbesinsights/2018/02/06/the-danger-of-not-understanding-blockchain-and-its-impact/ (last accessed 12 August 2020). See also J. Angelis and E.R. da Silva, “Blockchain Adoption: A Value Driver Perspective” (2019) 62 Business Horizons 307, 307–09; UK Government Chief Scientific Adviser, Distributed Ledger Technology, 21–30.

²⁷ Enriques and Zetzsche, “Corporate Technologies”, 15–19; Fenwick and Vermeulen, “Technology and Corporate Governance”, 13–14; Geis, “Traceable Shares”, 254–73; Lafarre and Van der Elst, “Blockchain Technology”, 8–20; Laster, “Block Chain Plunger”, 19–21; Reyes et al., “Distributed Governance”, 17–24; D. Yermack, “Corporate Governance and Blockchains” (2017) 2017 Review of Finance 7, 8–9. For additional background on the technology, see S. Cramer and D. Yadav, “Fintech Developments” in Dora Neo et al. (eds.), Financial Services Law and Regulation (Singapore 2019), 644, 667–71; Enriques and Zetzsche, “Corporate Technologies”, 8–12; Lafarre and Van der Elst, “Blockchain Technology”, 4–5; Laster, “Block Chain Plunger”, 16–19; C.L. Reyes, “If Rockefeller Were a Coder” (2019) 87 George Washington Law Review 373, 383–87; Reyes et al., “Distributed Governance”, 8–16; Yermack, Corporate Governance”, 10–17, 26.

²⁸ UK Government Chief Scientific Adviser, Distributed Ledger Technology, 17.

²⁹ Ibid.

³⁰ Donovan, “Blockchain”, 13–15.

³¹ Ibid., at 13.

³² Ibid., at 13–15. See also UK Government Chief Scientific Adviser, Distributed Ledger Technology, 10; Johnstone, “Regulating Cryptographic”, 9–10, 31–32.

³³ UK Government Chief Scientific Adviser, Distributed Ledger Technology, 10, 18. See also Johnstone, “Regulating Cryptographic”, 25; “The State of Blockchain in the UK, with Digital Catapult's Robert Learney”, Techerati, available at https://techerati.com/features-hub/opinions/blockchain-uk-btw20-btw-2020-robert-learney-digital-catapult/ (last accessed 12 August 2020).

³⁴ In re Dole Food Co., C.A. No. 8703-VCL, 2017 Del. Ch. LEXIS 25, *1–*12 (Del. Ch., 15 February 2017).

³⁵ Ibid., at *12–*20.

³⁶ Ibid., at *11 n. 1. See also J.A. Klayman, G.R. Peck and M.S. Wojciechowski, “Why The Delaware Blockchain Initiative Matters To All Dealmakers”, Forbes, available at https://www.forbes.com/sites/groupthink/2017/09/20/why-the-delaware-blockchain-initiative-matters-to-all-dealmakers/ (last accessed 12 August 2020).

³⁷ Laster, “Block Chain Plunger”, 23–24.

³⁸ Delaware Code Annotated, title 8, ss. 219(c), 224. See also J. Fu, Technology and Corporate Governance (Brussels 2018), 4; P. Goldstein, “What Is Behind Delaware's New Blockchain Deal with IBM?”, StateTech Magazine, available at https://statetechmagazine.com/article/2018/07/what-behind-delawares-new-blockchain-deal-ibm (last accessed 12 August 2020); Levine, “The Danger”. Delaware likewise permits electronic shareholder meetings. Delaware Code Annotated, title 8, s. 211(a); Lafarre and Van der Elst, “Blockchain Technology”, 19.

³⁹ Van der Elst and Lafarre, “Blockchain and Smart Contracting”, 4–5.

⁴⁰ European Commission, “FinTech Action Plan: For a More Competitive and Innovative European Financial Sector”, COM(2018) 109 final, 12–14.

⁴¹ Digital Catapult, “Artificial Intelligence”, available at https://www.digicatapult.org.uk/technologies/artificial-intelligence (last accessed 12 August 2020); Digital Catapult, “Future Focus”, available at https://www.digicatapult.org.uk/technologies/future-focus (last accessed 12 August 2020); Digital Catapult, “Our Story”, available at https://www.digicatapult.org.uk/our-story (last accessed 12 August 2020). See also “The State of Blockchain”; UK Government Chief Scientific Adviser, Distributed Ledger Technology, 10–11.

⁴² UK Government Chief Scientific Adviser, Distributed Ledger Technology, 15, 27–28.

⁴³ E.g. Laster, “Block Chain Plunger”, 22; UK Government Chief Scientific Adviser, Distributed Ledger Technology, 60–61 (describing the SETL initiative for blockchain-based securities transaction settlement). See also H. McDowell, “SETL Launches Blockchain Sandbox Initiative”, The Trade, available at https://www.thetradenews.com/setl-launches-blockchain-sandbox-initiative/ (last accessed 12 August 2020); SETL, “We Are SETL”, available at https://setl.io (last accessed 12 August 2020).

⁴⁴ Laster, “Block Chain Plunger”, 22; Lafarre and Van der Elst, “Blockchain Technology”, 25.

⁴⁵ E.g. Delaware Code Annotated, title 8, ss. 102(b)(1) (permitting charter provisions “for the management of the business” and “creating, defining, limiting and regulating the powers of the corporation, the directors, and the stockholders”), 141(a) (permitting charter provisions deviating from board governance), 354 (permitting partnership-style governance by shareholders in statutory close corporations).

⁴⁶ C. Jentzsch, “The History of the DAO and Lessons Learned”, available at https://blog.slock.it/the-history-of-the-dao-and-lessons-learned-d06740f8cfa5 (last accessed 12 August 2020).

⁴⁷ Ibid. See also Fenwick and Vermeulen, “Technology and Corporate Governance”, 17; Reyes, “If Rockefeller Were a Coder”, 389–418 (arguing that such businesses should organise as business trusts to avoid default partnership treatment); U.R. Rodrigues, “Law and the Blockchain” (2019) 104 Iowa L.Rev. 679, 706–08 (observing that the DAO was a partnership even though “DAO organizers and DAO enthusiasts often slipped into corporate terminology”).

⁴⁸ Reyes et al., “Distributed Governance”, 4–5. See also Donovan, “Blockchain”, 20–21; Jentzsch, “History of the DAO”; Fenwick and Vermeulen, “Technology and Corporate Governance”, 17–18; Lafarre and Van der Elst, “Blockchain Technology”, 4–8; Rodrigues, “Law and the Blockchain”, 697–704.

⁴⁹ Reyes et al., “Distributed Governance”, 4.

⁵⁰ M. Finck, “Blockchains and the Right to Be Forgotten” in Aggarwal et al. (eds.), Autonomous Systems, 87, 87–90; A. Morrison, “Biometric Data Matching Risks and the Rise of Self-Sovereign Identity” in Aggarwal et al. (eds.), Autonomous Systems, 99, 101. See also Regulation (EU) No 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119), art. 17 (establishing “the right to obtain … erasure of personal data concerning him or her without undue delay” under specified circumstances).

⁵¹ Donovan, “Blockchain”, 16–19; K. Jacob, “Smart Contracting: Simple, Digital, Automated” in Aggarwal et al. (eds.), Autonomous Systems, 3–8; M. Fries, “Smart Consumer Contracts: The End of Civil Procedure?” in Aggarwal et al. (eds.), Autonomous Systems, 13, 14–16; Rodrigues, “Law and the Blockchain”, 697.

⁵² L.H. Scholz, “Toward a Consumer Contract Law for an Algorithmic Age” in Aggarwal et al. (eds.), Autonomous Systems, 9, 9–12. On smart contract dispute resolution generally, see M. Durovic, “How to Resolve Smart Contract Disputes: Smart Arbitration as a Solution” in Aggarwal et al. (eds.), Autonomous Systems, 23; A. Hacke, “Micro-justice and New Law? ‘Swarm Arbitration’ as a Means of Dispute Resolution in Blockchain-based Smart Contracts” in Aggarwal et al. (eds.), Autonomous Systems, 17.

⁵³ J. Song, “Why Blockchain Is Hard”, Medium, available at https://medium.com/@jimmysong/why-blockchain-is-hard-60416ea4c5c (last accessed 12 August 2020).

⁵⁴ P. Schueffel, “Alternative Distributed Ledger Technologies: Blockchain vs. Tangle vs. Hashgraph – A High-level Overview and Comparison”, 2, available at https://ssrn.com/abstract=3144241 (last accessed 12 August 2020). See also N. Joshi, “Alternatives to Blockchain that Businesses Must Consider”, available at https://www.allerin.com/blog/alternatives-to-blockchain-that-businesses-must-consider (last accessed 12 August 2020).

⁵⁵ Schueffel, “Alternative Distributed Ledger Technologies”, 2–5 (describing Tangle and Hashgraph). See also Trading Education, “Post-blockchain: The Alternatives to Blockchain Technology”, available at https://trading-education.com/post-blockchain-the-alternatives-to-blockchain-technology (last accessed 13 July 2020) (same).

⁵⁶ See notes 27–32 above and accompanying text.

⁵⁷ J. Song, “Alternatives to Blockchain”, Medium, available at https://medium.com/@jimmysong/alternatives-to-blockchain-9f858c0a1f2d (last accessed 12 August 2020). See also Joshi, “Alternatives to Blockchain”.

⁵⁸ Schueffel, “Alternative Distributed Ledger Technologies”, 5. See also Trading Education, “Post-blockchain”.

⁵⁹ Cf. notes 27–32 above and accompanying text. See also L. Stout, The Shareholder Value Myth: How Putting Shareholders First Harms Investors, Corporations, and the Public (San Francisco 2012), 63–67 (describing “just how hyperactive today's stock markets have become”).

⁶⁰ Reyes et al., “Distributed Governance”, 6–7.

⁶¹ “An Open Letter”, available at https://pastebin.com/CcGUBgDG (last accessed 12 August 2020).

⁶² Johnstone, “Regulating Cryptographic”, 27–28 (observing that Ether holders “voted by almost 9:1” to execute the hard fork).

⁶³ Yermack, “Corporate Governance”, 28. See also Donovan, “Blockchain”, 21–22; Jentzsch, “History of the DAO”; Lafarre and Van der Elst, “Blockchain Technology”, 7; Reyes et al., “Distributed Governance”, 7; Rodrigues, “Law and the Blockchain”, 704–06.

⁶⁴ Johnstone, “Regulating Cryptographic”, 28.

⁶⁵ S. Bayern, T. Burri, T.D. Grant, D.M. Häusermann, F. Möslein and R. Williams, “Company Law and Autonomous Systems: A Blueprint for Lawyers, Entrepreneurs, and Regulators” (2017) 9 Hastings Science and Technology Law Journal 135, 159–60; Jentzsch, “History of the DAO”; Lafarre and Van der Elst, “Blockchain Technology”, 7–8; M. Petrin, “Corporate Management in the Age of AI”, UCL Working Paper No. 3/2019, 51–52, available at https://ssrn.com/abstract=3346722 (last accessed 12 August 2020) (Columbia Business Law Review, forthcoming). See also UK Government Chief Scientific Adviser, Distributed Ledger Technology, 43–44 (observing that the need for greater formality in governance of the software for unpermissioned systems like Bitcoin conflicts with their “ethos of anti-institutionalism”).

⁶⁶ Notes 29–32 above and accompanying text.

⁶⁷ Lafarre and Van der Elst, “Blockchain Technology”, 9–11.

⁶⁸ Enriques and Zetzsche, “Corporate Technologies”, 35–36; Geis, “Traceable Shares”, 269–70; Reyes et al., “Distributed Governance”, 26–27. On rational apathy generally, see Allen and Kraakman, Commentaries and Cases, 164; S.J. Choi and A.C. Pritchard, Securities Regulation: Cases and Analysis, 4th ed. (St. Paul, MN 2015), 699–700.

⁶⁹ Fu, Technology and Corporate Governance, 4–5; Geis, “Traceable Shares”, 272–73; Lafarre and Van der Elst, “Blockchain Technology”, 20–25; Van der Elst and Lafarre, “Blockchain and Smart Contracting”, 15–20; Yermack, “Corporate Governance”, 8–9.

⁷⁰ Section III below.

⁷¹ S.M. Bainbridge, “Corporate Law”, 2nd ed. (New York 2009), 73–74; Petrin, “Corporate Management”, 7–10.

⁷² Petrin, “Corporate Management”, 7–28.

⁷³ Dignam, “Artificial Intelligence”, 3–11; F. Möslein, “Robots in the Boardroom: Artificial Intelligence and Corporate Law” in W. Barfield and U. Pagallo (eds.), Research Handbook on the Law of Artificial Intelligence (forthcoming 2017/18), 7, available at https://ssrn.com/abstract=3037403 (last accessed 12 August 2020); Petrin, “Corporate Management”, 6.

⁷⁴ R. Calo, “Artificial Intelligence Policy: A Primer and Roadmap” (2017) 51 U.C. Davis Law Review 399, 404–05. See also J. Armour and H. Eidenmüller, “Self-driving Corporations?” (2020) Harvard Business Law Review 87, 93–95; G. Marcus, “Deep Learning: A Critical Appraisal”, 2, available at https://arxiv.org/pdf/1801.00631.pdf (last accessed 12 August 2020).

⁷⁵ Enriques and Zetzsche, “Corporate Technologies”, 13–14. See also R.J. Thomas, R. Fuchs and Y. Silverstone, A Machine in the C-Suite (Dublin 2016), 5–7.

⁷⁶ Petrin, “Corporate Management”, 14–17.

⁷⁷ V. Kolbjørnsrud, R. Amico and R.J. Thomas, The Promise of Artificial Intelligence: Redefining Management in the Workforce of the Future (Dublin 2016), 3–4. See also Möslein, “Robots in the Boardroom”, 13–16; Petrin, “Corporate Management”, 32–35.

⁷⁸ B. Frischmann and E. Selinger, Re-engineering Humanity (Cambridge 2018), 58–59 (discussing application of Frederick Taylor's ideas through emerging technologies).

⁷⁹ E.g. Delaware Code Annotated, title 8, s. 141(b) (“The board of directors of a corporation shall consist of 1 or more members, each of whom shall be a natural person.”); Möslein, “Robots in the Boardroom”, 13–16.

⁸⁰ E.g. in the US this could be accomplished through the highly flexible limited liability company (LLC) form. Bayern et al., “Company Law and Autonomous Systems”, 136–39. See also L.M. LoPucki, “Algorithmic Entities” (2018) 95 Washington University Law Review 887, 898–99. Alternatively, this could be accomplished through the corporate form itself, if the board of directors were dispensed with altogether in favour of direct governance by (algorithmic) shareholders. LoPucki, “Algorithmic Entities”, 907–11.

⁸¹ Dignam, “Artificial Intelligence”, 18–22; L. Moerel and M. Storm, “Automated Decisions Based on Profiling: Information, Explanation or Justification – That Is the Question!” in Aggarwal et al. (eds.), Autonomous Systems, 91, 92–97.

⁸² H. Eidenmüller, “Machine Performance and Human Failure” in Aggarwal et al. (eds.), Autonomous Systems, 75, 78–79; Johnstone, “Regulating Cryptographic”, 29–30, 35; F. Möslein, “Regulating Robotic Conduct: On ESMA's New Guidelines and Beyond” in Aggarwal et al. (eds.), Autonomous Systems, 45, 47–48; Petrin, “Corporate Management”, 42–44.

⁸³ Frischmann and Selinger, Re-engineering Humanity, 115–17; O. Borgogno and C. Poncibò, “The Day after Tomorrow of Banking: On FinTech, Data Control and Consumer Empowerment” in Aggarwal et al. (eds.), Autonomous Systems, 55, 55–60; S. Ranchordás, “Cities as Corporations? The Privatisation of Cities and the Automation of Local Law” in Aggarwal et al. (eds.), Autonomous Systems, 81, 84–85.

⁸⁴ Dignam, “Artificial Intelligence”, 27; Markou and Deakin, “Ex Machina Lex”, 8, 16–17.

⁸⁵ Calo, “Artificial Intelligence Policy”, 406, 424. See also Pasquale, Black Box Society, 82 (describing barriers to entry that insulate incumbent technology firms).

⁸⁶ N. Aggarwal, “Machine Learning, Big Data and the Regulation of Consumer Credit Markets: The Case of Algorithmic Credit Scoring” in Aggarwal et al. (eds.), Autonomous Systems, 37, 39–43; Calo, “Artificial Intelligence Policy”, 411–13; Dignam, “Artificial Intelligence”, 13–17; Enriques and Zetzsche, “Corporate Technologies”, 24–25; Petrin, “Corporate Management”, 35.

⁸⁷ O'Neil, Weapons of Math Destruction, 3 (discussing associated marketing).

⁸⁸ Frischmann and Selinger, Re-engineering Humanity, 50–53; O'Neil, Weapons of Math Destruction, 23–31, 84–104; Pasquale, Black Box Society, 38–42.

⁸⁹ R. Courtland, “The Bias Detectives”, Nature, 21 June 2018, 357, 357–58.

⁹⁰ LoPucki, “Algorithmic Entities”, 891–92.

⁹¹ J. Medeiros, “Stephen Hawking: ‘I Fear AI May Replace Humans Altogether’”, Wired, available at https://www.wired.co.uk/article/stephen-hawking-interview-alien-life-climate-change-donald-trump (last accessed 12 August 2020). See also Frischmann and Selinger, Re-engineering Humanity, 97 (reporting Elon Musk's view that humans must become cyborgs to avoid takeover by artificial intelligence); LoPucki, “Algorithmic Entities”, 892–93 (citing fears of Musk and Bill Gates).

⁹² Section III(B) below.

⁹³ Armour and Eidenmüller, “Self-driving Corporations?”, 90.

⁹⁴ Calo, “Artificial Intelligence Policy”, 431–35. See also Frischmann and Selinger, Re-engineering Humanity, 103 (rejecting the “Frankensteinian” prediction that “sentient, autonomous AIs [will] enslave humanity”).

⁹⁵ Marcus, “Deep Learning”, 2, 6.

⁹⁶ Ibid., at 3.

⁹⁷ Ibid., at 6–13. See also M. Chui, J. Manyika and M. Miremadi, “What AI Can and Can't Do (Yet) for Your Business”, available at https://www.mckinsey.com/business-functions/mckinsey-analytics/our-insights/what-ai-can-and-cant-do-yet-for-your-business (last accessed 12 August 2020).

⁹⁸ Marcus, “Deep Learning”, 12. See also M. Botha, “The Limits of Artificial Intelligence”, available at https://towardsdatascience.com/the-limits-of-artificial-intelligence-fdcc78bf263b (last accessed 12 August 2020); J. Pontin, “Greedy, Brittle, Opaque, and Shallow: The Downsides to Deep Learning”, Wired, available at https://www.wired.com/story/greedy-brittle-opaque-and-shallow-the-downsides-to-deep-learning/ (last accessed 12 August 2020).

⁹⁹ Bainbridge, Corporate Law, 104–05.

¹⁰⁰ Markou and Deakin, “Ex Machina Lex”, 18.

¹⁰¹ LoPucki, “Algorithmic Entities”, 917–19. See also S. Nestor, “Corporate Governance 2030: Thoughts on the Future of Corporate Governance”, available at https://corpgov.law.harvard.edu/2018/12/26/corporate-governance-2030-thoughts-on-the-future-of-corporate-governance/ (last accessed 27 August 2020) (predicting that technology will not replace corporate governance “as a generator of trust”).

¹⁰² Armour and Eidenmüller, “Self-driving Corporations?”, 106.

¹⁰³ E.g. Kolbjørnsrud et al., The Promise of Artificial Intelligence, 10–15; Armour and Eidenmüller, “Self-driving Corporations?”, 99; Enriques and Zetzsche, “Corporate Technologies”, 29–30, 40–41; Möslein, “Robots in the Boardroom”, 13–14.

¹⁰⁴ D.W. Arner, J. Barberis and R.P. Buckley, “FinTech, RegTech, and the Reconceptualization of Financial Regulation” (2017) 37 Northwestern Journal of International Law and Business 371, 377–81; Cramer and Yadav, “Fintech Developments”, 644; Möslein, “Robots in the Boardroom”, 2.

¹⁰⁵ Cramer and Yadav, “Fintech Developments”, 665–67.

¹⁰⁶ Thomas et al., A Machine in the C-Suite, 4–7.

¹⁰⁷ Möslein, “Robots in the Boardroom”, 1–2 (citing the Hong Kong venture capital firm Deep Knowledge Ventures); Petrin, “Corporate Management”, 2–4 (citing this and other similar examples).

¹⁰⁸ Bruner, Corporate Governance, 111–42; C.M. Bruner, “What Is the Domain of Corporate Law?”, University of Georgia School of Law Research Paper No. 2019-04, available at https://ssrn.com/abstract=3308611 (last accessed 27 August 2020).

¹⁰⁹ Bruner, Corporate Governance, 28–107.

¹¹⁰ F.H. Easterbrook and D.R. Fischel, The Economic Structure of Corporate Law (Cambridge, MA 1991), 1–39, 90–93.

¹¹¹ Ibid., at 24, 35–39.

¹¹² M.M. Blair and L.A. Stout, “A Team Production Theory of Corporate Law” (1999) 85 Virginia Law Review 247, 250–54, 280–89, 320 (emphasis removed).

¹¹³ M. Friedman, “A Friedman Doctrine – The Social Responsibility of Business Is to Increase Profits” New York Times Magazine, 13 September 1970, 33, 122.

¹¹⁴ Bruner, Corporate Governance, 34–35, 53–65; Bruner, “What Is the Domain of Corporate Law?”, 21–26.

¹¹⁵ C.M. Bruner, “Center-Left Politics and Corporate Governance: What Is the ‘Progressive’ Agenda?” (2018) 2018 Brigham Young University Law Review 267.

¹¹⁶ E.g. J. Armour, L. Enriques, M. Pargendler and W.-G. Ringe, “Beyond the Anatomy” in R. Kraakman, J. Armour, P. Davies, L. Enriques, H. Hansmann, G. Hertig, K. Hopt, H. Kanda, M. Pargendler, W.-G. Ringe and E. Rock, The Anatomy of Corporate Law: A Comparative and Functional Approach, 3rd ed. (Oxford 2017), 267, 271; L.E. Strine, Jr. and N. Walter, “Conservative Collision Course?: The Tension Between Conservative Corporate Law Theory and Citizens United” (2015) 100 Cornell Law Review 335, 342–46, 350–59, 379–90. See also E. Tahmincioglu, “Boards Can Balance Profit & Social Purpose”, available at https://www.directorsandboards.com/articles/singleboards-can-balance-profit-social-purpose (last accessed 12 August 2020) (interviewing the Delaware Supreme Court's then-Chief Justice Leo Strine).

¹¹⁷ Bruner, “What Is the Domain of Corporate Law?”.

¹¹⁸ E.g. Hamdani et al., “Technological Progress”, 217–19, 223, 229–30; Lafarre and Van der Elst, “Blockchain Technology”, 2–4.

¹¹⁹ Section II above.

¹²⁰ E.g. 15 United States Code ss. 78m(d), (g), 78n; 17 Code of Federal Regulations ss. 240.13d-1, 13d-3, 13d-5, 14a-2. See also Allen and Kraakman, Commentaries and Cases, 203–14, 450–52; M.J. Roe, Strong Managers, Weak Owners: The Political Roots of American Corporate Finance (Princeton 1994), 151–68. Cf. Nestor, “Corporate Governance 2030” (observing that corporate governance reforms over the last several years “were not the result of a huge technological disruption but of a crisis”, and that “[o]ne should therefore expect limited change”).

¹²¹ See Bruner, Corporate Governance.

¹²² Ibid., at 29–36. See also Model Articles for Public Companies, Article 3 (for companies incorporated on or after 28 April 2013); Companies Act 2006, s. 172.

¹²³ Yermack, “Corporate Governance”, 9.

¹²⁴ Cf. Armour and Eidenmüller, “Self-driving Corporations?”, 108 (arguing that “calibrating the goals of a corporation will become a central corporate governance question with autonomous AI decision-making”); Petrin, “Corporate Management”, 46 (arguing that artificial intelligence will require “more definitive answers” regarding corporate purpose because, “in order to function autonomously, AI will need clearly defined goals and outcomes”).

¹²⁵ Frischmann and Selinger, Re-engineering Humanity, 52–53 (describing “engineered determinism” as “the grand hubris that we can socially construct a perfectly optimized world if we only have the data, confidence in our tools, and willingness to commit”).

¹²⁶ Fenwick and Vermeulen, “Technology and Corporate Governance”, 6–8.

¹²⁷ E.g. Frischmann and Selinger, Re-engineering Humanity, 269–95; O'Neil, Weapons of Math Destruction, 205–18; Pasquale, Black Box Society, 140–88; F. Pasquale, “The Second Wave of Algorithmic Accountability”, available at https://lpeblog.org/2019/11/25/the-second-wave-of-algorithmic-accountability/ (last accessed 12 August 2020); Dignam, “Artificial Intelligence”, 43–49; LoPucki, “Algorithmic Entities”, 925, 948; S. Russell, “How to Stop Superhuman A.I. before It Stops Us”, New York Times, available at https://www.nytimes.com/2019/10/08/opinion/artificial-intelligence.html (last accessed 12 August 2020). Industry participants themselves sometimes favour regulation for “the effect of validating an activity's legitimacy”. Johnstone, “Regulating Cryptographic”, 39–40.

¹²⁸ On this perspective generally, see H.K. Klein and D.L. Kleinman, “The Social Construction of Technology: Structural Considerations” (2002) 27 Science, Technology, & Human Values 28, 28–52. See also J. Powles and H. Nissenbaum, “The Seductive Diversion of ‘Solving’ Bias in Artificial Intelligence”, OneZero, available at https://onezero.medium.com/the-seductive-diversion-of-solving-bias-in-artificial-intelligence-890df5e5ef53 (last accessed 12 August 2020) (arguing that “the preoccupation with narrow computational puzzles” effectively “denies us the possibility of asking: Should we be building these systems at all?”).

¹²⁹ On the progressive response to shareholder-centric conceptions of corporate law and governance, see Bruner, “Center-Left Politics and Corporate Governance”, 276–83.

¹³⁰ Enriques and Zetzsche, “Corporate Technologies”, 35–36; Geis, “Traceable Shares”, 269; Reyes et al., “Distributed Governance”, 26–27.

¹³¹ Enriques and Zetzsche, “Corporate Technologies”, 38–39; Geis, “Traceable Shares”, 272–73. But see Yermack, “Corporate Governance”, 19–20 (arguing that impacts of blockchain technology on activism could be mixed because increased transparency reduces costs but limits the element of surprise).

¹³² C.M. Bruner, “Conceptions of Corporate Purpose in Post-Crisis Financial Firms” (2013) 36 Seattle University Law Review 527; C.M. Bruner, “Corporate Governance Reform in Post-crisis Financial Firms: Two Fundamental Tensions” (2018) 60 Arizona Law Review 959.

¹³³ B. Marr, “How Blockchain Will Transform the Supply Chain and Logistics Industry”, Forbes, available at https://www.forbes.com/sites/bernardmarr/2018/03/23/how-blockchain-will-transform-the-supply-chain-and-logistics-industry/#a0734e25fecd (last accessed 12 August 2020).

¹³⁴ N. Morris, “IBM's Solution to Linking Physical Goods with a Blockchain”, Ledger Insights, available at https://www.ledgerinsights.com/ibm-crypto-anchor-verifier-optical-fingerprint-blockchain/ (last accessed 12 August 2020).

¹³⁵ Bruner, “Center-Left Politics and Corporate Governance”, 295–314; Bruner, “Corporate Governance Reform in Post-crisis Financial Firms”, 971–73.

¹³⁶ Geis, “Traceable Shares”, 269–70.

¹³⁷ Enriques and Zetzsche, “Corporate Technologies”, 37.

¹³⁸ Bruner, “Center-Left Politics and Corporate Governance”, 303–14.

¹³⁹ Geis, “Traceable Shares”, 270 n. 243.

¹⁴⁰ Ibid.

¹⁴¹ Section II(B) above.

¹⁴² Hamdani et al., “Technological Progress”, 230; Möslein, “Regulating Robotic Conduct”, 47–48; Petrin, “Corporate Management”, 41–42.

¹⁴³ Enriques and Zetzsche, “Corporate Technologies”, 8.

¹⁴⁴ Ibid., at 53. See also Armour and Eidenmüller, “Self-driving Corporations?”, 102–03.

¹⁴⁵ See notes 95–103 above and accompanying text.

¹⁴⁶ See notes 86–89 above and accompanying text.

¹⁴⁷ Petrin, “Corporate Management”, 46–47.

¹⁴⁸ Ibid.

¹⁴⁹ Calo, “Artificial Intelligence Policy”, 426.

¹⁵⁰ Hamdani et al., “Technological Progress”, 219–23.

¹⁵¹ Calo, “Artificial Intelligence Policy”, 406–08, 424. See also Frischmann and Selinger, Re-engineering Humanity, 2 (referring to Alphabet, Amazon, Apple, Facebook and Microsoft as the “Frightful Five” technology companies).

¹⁵² Dignam, “Artificial Intelligence”, 30–40. See also LoPucki, “Algorithmic Entities”, 892. Many such entities tend to be “platforms” organised to “leverage networked technologies to facilitate economic exchange, transfer information and connect people”. M. Fenwick, J.A. McCahery and E.P.M. Vermeulen, “The End of “Corporate” Governance (Hello “Platform” Governance)”, ECGI Working Paper No. 430/2018, 3–7, available at https://ssrn.com/abstract=3232663 (last accessed 12 August 2020).

¹⁵³ See note 127 above and accompanying text.

¹⁵⁴ E.g. Johnstone, “Regulating Cryptographic”, 12–25; Reyes et al., “Distributed Governance”, 28–30; Rodrigues, “Law and the Blockchain”, 721–27.

¹⁵⁵ E.g. Form 10-K, Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, Item 1A (“Risk Factors”), Item 10 (“Directors, Executive Officers and Corporate Governance”); 17 Code of Federal Regulations s. 240.12b-20 (“In addition to the information expressly required to be included in a statement or report, there shall be added such further material information, if any, as may be necessary to make the required statements, in the light of the circumstances under which they are made not misleading.”). See also Enriques and Zetzsche, “Corporate Technologies”, 50 (advocating that existing corporate governance disclosure requirements be expanded to expressly require “disclosure of listed companies’ tech governance arrangements”).

¹⁵⁶ Russell, “How to Stop Superhuman A.I.”.

¹⁵⁷ Rodrigues, “Law and the Blockchain”, 706–08. For example, in the UK, the US and Germany, general partnership effectively represents an organisational default category. See Partnership Act 1890, ss. 1, 9; Revised Uniform Partnership Act ss. 202, 306 (Uniform Law Commission 1997) (last amended 2013); Handelsgesetzbuch, Buch 2, ss. 105, 128. For an unofficial translation of the German provisions, see Commercial Code, Book 2: Commercial Partnerships and Silent Partnership, ss. 105, 128, available at http://www.gesetze-im-internet.de/englisch_hgb/englisch_hgb.html#p0466 (last accessed 12 August 2020) (translation provided by the Language Service of the Federal Ministry of Justice and Consumer Protection, including amendments by Article 3 of the Act of 22 December 2015). Failure to register a business with relevant public authorities may, however, raise distinct legal issues.

¹⁵⁸ E.g. Delaware Code Annotated, title 8, s. 141(a) (stating that, if a corporation deviates from board governance, such “powers and duties … shall be exercised or performed to such extent and by such person or persons as shall be provided in the [charter]”). The US limited liability company form, by contrast, would permit management by equity holders and limitation or elimination of fiduciary duties through the LLC agreement, but the implied contractual covenant of good faith and fair dealing could not be eliminated. E.g. Delaware Code Annotated, title 6, s. 18-1101(c). See also Reyes, “If Rockefeller Were a Coder”, 389–418 (advocating use of the business trust form to avoid partnership treatment).

¹⁵⁹ See note 82 above and accompanying text.

¹⁶⁰ Cf. In re Caremark International Inc. Derivative Litigation, 698 A.2d 959, 970 (Del. Ch. 1996) (requiring “that the board exercise a good faith judgment that the corporation's information and reporting system is in concept and design adequate to assure the board that appropriate information will come to its attention in a timely manner as a matter of ordinary operations”).

¹⁶¹ Thompson, R.B. and Sale, H.A., “Securities Fraud as Corporate Governance: Reflections upon Federalism” (2003) 56 Vanderbilt Law Review 859, 892–99Google Scholar, 906–07 (finding that securities fraud suits implicate “care-based concerns” regarding managerial performance, and tend to focus on officers to a greater extent than Delaware corporate suits do).

¹⁶² See note 155 above.

¹⁶³ Armour and Eidenmüller, “Self-driving Corporations?”, 109–13 (arguing for consideration of such initiatives, as well as “adapting the registration requirements such that an algorithmically controlled corporation must act within the framework of a given corridor of permissible corporate objectives and goal functions”).

¹⁶⁴ Petrin, “Corporate Management”, 42–44.

¹⁶⁵ European Commission, “FinTech Action Plan”, 4–5, 8–9; Global Financial Innovation Network (GFIN), “Consultation Document” (August 2018), 17–18.

¹⁶⁶ M. Zou, “Innovation without Authorisation? The Regulatory Black Box of Cryptocurrencies in China” in Aggarwal et al. (eds.), Autonomous Systems, 61, 63–65; Arner et al., “FinTech”, 409–11; Cramer and Yadav, “Fintech Developments”, 664–65; European Commission, “FinTech Action Plan”, 8–10; Global Financial Innovation Network (GFIN), “Consultation Document”, 3–6, 9–11; Perkins Coie, “Fintech Regulatory Sandboxes: Update on Arizona's Sandbox and Other Developments”, available at https://www.jdsupra.com/legalnews/fintech-regulatory-sandboxes-update-on-85915/ (last accessed 12 August 2020).

¹⁶⁷ Global Financial Innovation Network (GFIN), “Consultation Document”, 17–18.

¹⁶⁸ Donovan, “Blockchain”, 25–26.

¹⁶⁹ Perkins Coie, “Fintech Regulatory Sandboxes”.

¹⁷⁰ Donovan, “Blockchain”, 28–31. On regulatory sandboxes at the US state level, see Kilpatrick Townsend, “Wyoming Becomes Second State to Create Fintech Regulatory Sandbox”, available at https://www.kilpatricktownsend.com/en/Blog/fintech/2019/3/Wyoming-Becomes-Second-State-to-Create-Fintech-Regulatory-Sandbox (last accessed 12 August 2020); Perkins Coie, “Fintech Regulatory Sandboxes”; A. Stanley, “Arizona Becomes First U.S. State to Launch Regulatory Sandbox for Fintech”, Forbes, available at https://www.forbes.com/sites/astanley/2018/03/23/arizona-becomes-first-u-s-state-to-launch-regulatory-sandbox-for-fintech/ (last accessed 12 August 2020). On pilot programmes related to distributed ledger and blockchain technology, see J.W. Bullock, “Annual Report Statistics: A Message from the Secretary of State”, available at https://corp.delaware.gov/stats/ (last accessed 23 May 2019); M. del Castillo, “Nasdaq Leads $20 Million Investment In Enterprise Blockchain Startup Symbiont”, Forbes, available at https://www.forbes.com/sites/michaeldelcastillo/2019/01/23/exclusive-nasdaq-leads-20-million-investment-in-enterprise-blockchain-startup-symbiont/ (last accessed 12 August 2020); Goldstein, “What Is Behind Delaware's New Blockchain Deal”; Levine, “The Danger”.

¹⁷¹ Arner et al., “FinTech”, 373, 383; UK Government Chief Scientific Adviser, Distributed Ledger Technology, 11–12. On the problems associated with heavy reliance of public entities on private technology, see Ranchordás, “Cities as Corporations?”, 82–85 (citing the “complex transparency and accountability problems” that arise, as well as “questions regarding the ownership and management of data and the limits of outsourcing data collection to machine learning processes managed or updated by private companies”).

¹⁷² Kolbjørnsrud et al., The Promise of Artificial Intelligence, 15.

¹⁷³ Russell, “How to Stop Superhuman A.I.” (emphasis removed).

¹⁷⁴ Kolbjørnsrud et al., The Promise of Artificial Intelligence, 13.

¹⁷⁵ Cf. Bruner, “What Is the Domain of Corporate Law?” (exploring this contingency generally).