Rand and Viscount Bennett Lecturers | News and Events | Spring 2020 | NEXUS Magazine | The Faculty of Law | UNB

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Rand and Viscount Bennett lecturers talk environmental protection and crypto-currency

Environmental Protection and the Abject Failures of the Common Law

In late October, Professor Bruce Ziff of the University of Alberta Faculty of Law presented the twenty-fifth installment of the Ivan C. Rand Memorial Lecture Series. Professor Ziff’s lecture, Environmental Protection and the Abject Failures of the Common Law, focused on the state of legal protections for the environment prior to the extensive legislative reforms that emerged in the late 1960s and early 1970s.

Prior to the advent of those modern statutory instruments, the pertinent legal framework was furnished by the common law. In that regard, it is well understood that the law of torts played a prominent role. However, tort law was ill-suited to the task. While those limitations have been well understood and documented, less attention has been paid to the extent to which private property rights and doctrines also affected environmental matters.

As Professor Ziff noted, private property has been touted as a vehicle for environmental stewardship. The American scholar Robert Ellickson has offered that "[T]he preeminent advantage of an infinite land interest is that it is a low-transaction cost device for inducing a mortal landowner to conserve natural resources for future generations.” However, Professor Ziff stressed the extent to which fundamental principles of private ownership can, and have, undermined environmental protection. Private owners have incentives to protect their holdings; but they are also—absent strong legislative guardrails—empowered to ruin their lands.

Professor Ziff argued that an examination of property law's shortcomings is important. In the last two second decades, a supposedly novel approach to environmental stewardship has been advanced—free market environmentalism. This mode of regulation is based on the harnessing of market forces, not top-down government regulation, as an effective way to protect environmental interests. However, as Professor Ziff sought to demonstrate, such a position is not in fact new. It is, at its core, based on a belief in the capacity of private owners to use resources prudently and efficiency. It was just such a belief that has contributed to our current predicament, and led to the introduction of legislative reforms some 50 years ago. The common law, including the law of property, has been an abject failure in protecting the environment.

The New Crypto World: Governance on The Margins

Dr. Allan C. Hutchinson, professor of law at York University’s Osgoode Hall Law School, delivered the forty-first edition of the Viscount Bennett Memorial Lecture on January 30. Nearly 100 were in attendance as Hutchinson explored the regulatory challenges of cryptocurrency in his talk, The New Crypto World: Governance on The Margins

Professor Hutchinson describes cryptocurrency as a borderless, decentralized/distributed digital currency. It is self-regulating through a set of protocols that form the underlying blockchain technology. It is pseudo-anonymous as the network shows transparency through its universal ledger—this same universal ledger ensures that transactions are permanent and unalterable. Hutchinson categorizes the five major players of cryptocurrency as users, developers/programmers, miners, permissioned networks, and exchanges/banks.

According to Professor Hutchinson, it is cryptocurrency’s decentralized/distributed nature that poses the greatest challenge to the financial services sector, state-backed fiat currency, and to the regulatory authority and reach of the law. Cryptocurrency warrants a regulatory approach that can maintain its original appeal—decentralized control—while protecting not only crypto-users but the broader society.

A major regulatory challenge lies in the difficulty of defining cryptocurrency. Is it property? Currency? Commodity? Security? Sui generis? For Hutchinson, crypto cannot be shoehorned into a pre-existing regulatory system. Regulation must recognize that the crypto world is truly a new world and a regulatory framework must be developed with this in mind.

Professor Hutchinson draws a comparison between the crypto/blockchain code-developers and corporate directors, finding parallels in fiduciary duty. The code developers, he suggests, have a duty to protect the best interests of the crypto-users and, thus, make a tenable target for regulation. Hutchinson goes on to point out, however, that convincing these individuals to accept their fiduciary role will not be without its difficulties. Code developers shy away from being professionally liable for obvious reasons. But, with ingenuity and constraint, a regime can be introduced that does not over-expose them.

Cryptocurrency will undoubtedly continue to dominate the headlines as familiarity and adoption continue to grow. UNB Law thanks Professor Hutchinson for delivering an entertaining and highly informative talk.

If you would like to read more about cryptocurrency regulation, keep an eye out for Hutchinson’s article, “Breaking the Code: Cryptocurrency and Programming Proposal,” in Volume 71 of the UNB Law Journal.

Thanks also to Professors Anne Warner La Forest and Jane Thomson, co-chairs of the UNB Law Speaker’s Committee, for organizing these successful events.



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