[Yet another domain exemplifying the desperate avoidance of the p-p collapse]
http://clsbluesky.law.columbia.edu/2016/02/11/emerging-payment-systems-and-the-primacy-of-private-law/ Payment systems now stand in an era of rapid technological change typified by two streams of innovation: mobile payments (such as Apple Pay) and cryptographic virtual currencies (most prominently Bitcoin). Apple Pay builds its payment structure on top of existing ecosystems, serving as a conduit for payments by credit card, debit card, and ACH. The end-user legal protections in TILA and EFTA for the underlying payments do not, however, obviously apply to the mobile payment overlay uncontemplated at the time of the 1970s adoptions. This situation raises questions about the scope and applicability of those protections when mobile device hardware or software is the cause-in-fact of unauthorized payments. Even further outside of existing legal ecosystems are cryptocurrencies. Bitcoin, for instance, not only can exchange monetary value outside the existing paradigm of legal tender, but its use of “blockchain” technology and a distributed network as a verification system means that it can dispense with the need for trusted institutional intermediaries.[8] The once unthinkable is now possible—electronic payments without banks in the middle. Do the lessons of the last fifty years of payments law and technology hold any lessons for a foreseeable future of developments that were once as unforeseeable as mobile payments and cryptocurrency? In this paper, I argue that they do. Payment systems have now clearly exceeded the regulatory capacity of public legal institutions to govern them via a comprehensive code like the UCC. Public law protection of the end user, however, has proven so successful and facilitated such industry growth that complete privatization of payments law is not the best response either. Emerging payment systems should be subject to a division between private law and public law in which private law is predominant, but not exclusive.
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