Extremely Modern Studies in Property Law?

On 21-23 March 2012 I attended a conference in Southampton on Modern Studies in Property Law. This is a biennial conference, and papers presented here are usually published in a volume by Hart. I had originally intended to provide you with an overview of the entire conference, as in my last blog on The Involvement of EU Law in Private Law Relationships. However, the keynote speech on the first day delivered by Simon Gardner (Professor of Law at Lincoln College, Oxford) was so exceptional that I feel it deserves special attention. The topic of his talk was ‘Advanced Electronic Conveyancing’. I had therefore expected a presentation on how developments in software make registration of property rights continuously easier and cheaper, or on the extent to which different registries have switched from manual registration to electronic registration. Indeed, he started his talk by explaining how electronic conveyancing could close the time-gap currently caused by manual registration and that more dispositions should be registrable. Soon, however, the talk took an unexpected turn. Gardner spoke about the fact that people’s interest in modes of life that cannot be lived electronically is waning. He then presented a wide variety of actual and hypothetical developments in electronics which are – or might be – able to register what you are doing and thinking to amazing detail. Think for instance about patches that could be attached to your wrist or throat through electrostatic forces, registering your movements and speech, or a net of extremely thin wires that could be placed on your head, registering… well, goodness knows. Think for instance also about what could be possible with your iPhone 6 (or iPhone 10 even). They might have an app with which you could register people’s facial expressions and deduce how they think and feel about you or other people. Gardner’s main question seemed to be, whether such apps and devices could be used to determine whether or not a person has a proprietary interest in an object. If they could, the information they gathered could then be forwarded to the electronic conveyancing system. If I understood Gardner correctly – and I must admit, his presentation was so unusual that I cannot be certain that I did understand – the information thus gathered in the registry could provide clarity in cases where parties dispute whether and to what extent they created or transferred a proprietary interest. This could in turn help to reduce the number of cases in which an overriding interest (such as a constructive trust interest) would otherwise arise. What we would essentially need to achieve this level of advanced electronic conveyancing, would be a ‘registry app’ to gather the necessary information for the registration of a proprietary interest, and a ‘discretion app’ to deal with the aspect of discretion on the part of courts that is often present in overriding interests.

Gardner’s keynote speech elicited equal amounts of praise and criticism. His presentation was interspersed with Youtube videos, some of which had a clear purpose, and some of which were less easy to place in the context of the presentation. Was Gardner’s presentation brilliant, or pointless? Was he serious, or was he having a laugh? I find that difficult to determine. It certainly complied with the theme of the conference: Modern Studies in Property Law. One thing is sure: nobody was nodding off during his presentation, and everyone talked about it throughout the rest of the conference, trying to determine what his point had been and discussing other possible uses of future electronics in a legal context. Legal education and conferences would certainly become a lot more intriguing if more people held presentations this way. As far as Simon Gardner’s talk is concerned: I am strongly leaning towards brilliant.

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