Conceptual Surveys

(with Aryeh Younger)

‘Who will guard the guards themselves?’ asked the Roman poet Juvenal. For many today, the answer is to replace guardians altogether with blockchain technology. Blockchains are designed to be resistant to data modification, with each storage block (viz. record) containing an unalterable cryptographic timestamp. As such, the chain of block can act as a transaction ledger without being overseen by any overarching authority. Originally created to underpin the bitcoin cryptocurrency, it was only a matter of time before other industries began to use it.

One such industry is that of real estate. One of the largest U.S. counties, Cook County, Illinois, has already begun storing land records in the blockchain. A Final Report, issued from the Cook County Recorder’s office, details the results of using blockchain for land recording, most of which have been successful. The report also contains a number of sections detailing the reasons the county has for adopting blockchain in the first place. These stem from an analysis of some of the most commonly used concepts relating to transferring land. No philosopher could read this without reaching for the proverbial red pen. Yet it is critical to ensure that we have a strong grasp of the concepts we employ, before exploring the possibility of implementing a major policy change, such as that of adopting blockchain technology to record land documents.

Central to the Cook County report is the claim that the ‘essence’ of a conveyance is information. But this is a poor analysis of the concept that could seriously undermine current systems of real estate law. For one, there is no such thing as the essenceof a conveyance. Use, as Wittgenstein taught us, is tantamount to meaning and, as Black’s Law Dictionary makes clear, the word ‘conveyance’ has at least two different uses within legal contexts alone. It can be used to refer to either (a) an act viz. the assigning, sale, or transfer of property or (b) an object, such as a deed or mortgage instrument.

In the first sense, conveyances involve the passing around of documents from one person to another. No doubt, these documents contain information. But, the conveyance act does not itself amount to the information in question. The second, object, sense of ‘conveyance’, may at first sight seem a promising candidate for…