Law Commons^™

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

Auer Deference Should Be Dead; Long Live Seminole Rock Deference, John B. Meisel

Catholic University Journal of Law and Technology

Deference doctrines should be understood in light of the Administrative Procedures Act’s distinction between legislative rules and interpretive rules and should be based on a solid theoretical foundation. Modern Auer deference calls for categorical deference for an agency’s regulatory interpretation of an ambiguous regulation. This is inconsistent with the APA’s characterization of the purpose of an interpretive rule. Properly construed, interpretive rules clarify the meaning of a legal text which should be justified by use of expository reasoning. These rules deserve a lesser form of deference (Skidmore deference), based on an agency’s unique understanding of its own regulations which …

The Challenges And Risks Of Creating Independent Regulatory Agencies, Mariana M. Prado

Vanderbilt Journal of Transnational Law

Between 1996 and 2002, the Brazilian government established independent regulatory agencies (IRAs) for electricity, telecommunications, oil, gas, and other infrastructure sectors as part of a very ambitious privatization program. Following the formulas advocated internationally, Brazilian IRAs have institutional guarantees of independence, such as fixed and staggered terms of office for commissioners, congressional approval of presidential nominations, and alternative sources of funds to ensure their financial autonomy. This Article analyzes the design of IRAs in Brazil and asks whether their institutional guarantees of independence were effective in insulating them from the political sphere. The Author's general conclusion is that these guarantees--typical …