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 …

The Regulation Of Cryptocurrencies: Between A Currency And A Financial Product, Hadar Y. Jabotinsky Dr.

Fordham Intellectual Property, Media and Entertainment Law Journal

Cryptocurrencies are electronically generated and stored currencies by which users can trade either real or virtual objects with one another. As these digital assets gain popularity, the issue of how to regulate them becomes more pressing. Cryptocurrencies are attractive due in part to their decentralized, peer-to-peer structure. This makes them an alternative to national currencies which are controlled by central banks. Given that these cryptocurrencies are already replacing some of the “regular” national currencies and financial products, the question then arises—should they be regulated? And if so, how? This paper draws the legal distinction between cryptocurrencies which are in fact …

Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

This short article surveys developments in the law affecting electronic payments and financial services from June 1, 2017 to June 1, 2018. During this period, significant developments occurred that affected the regulation of initial coin offerings (ICOs), the Office of the Comptroller of the Currency’s proposal to issue “special purpose national bank charters” to FinTech companies, the CFPB’s final regulation of prepaid, general-purpose cards, state regulation of payroll cards, and how lawyers taking cryptocurrencies from clients as payment for services or for safekeeping should protect them. The survey also presents newly issued BitLicenses under the New York Department of Financial …

Conceptualizing The Regulation Of Virtual Currencies And Providers: Friction Points In State And Federal Approaches To Regulating Providers Of Payments Execution And Custody Services And Products In The United States, Sarah J. Hughes

Cleveland State Law Review

This essay evaluates the state of regulation by the United States government and State legislatures of participants in emerging virtual-currency businesses. It points to friction points as both the federal government and the States experiment with their own regulatory authority over virtual-currency businesses and provides a taxonomy of differing approaches to regulating such businesses. The essay takes the position that the States need to act in the near term if they wish to maintain their longstanding role as regulators of non-depository providers of financial products and services—or they risk being preempted by Congress or federal regulatory actions. This essay also …

The Blockchain Explained, Or How To Make Lots Of Money In Cryptocurrency, Jason Tubinis

Presentations

The School of Law's Information Technology Librarian summarizes blockchain, the current impact is having on business, finance and e-commerce, and the potential implications for our not so distant future as it pertains to the law.

The Tao Of The Dao: Taxing An Entity That Lives On A Blockchain, David J. Shakow

All Faculty Scholarship

In this report, Shakow explains how a decentralized autonomous organization functions and interacts with the U.S. tax system and presents the many tax issues that these structures raise. The possibility of using smart contracts to allow an entity to operate totally autonomously on a blockchain platform seems attractive. However, little thought has been given to how such an entity can comply with the requirements of a tax system. The DAO, the first major attempt to create such an organization, failed because of a programming error. If successful examples proliferate in the future, tax authorities will face significant problems in getting …

The Impact Of Regulatory Measures Imposed On Initial Coin Offerings In The United States Market Economy, Joseph D. Moran

Catholic University Journal of Law and Technology

With the surge of technological advances across the financial market landscape, companies have implemented new ways of raising money that have sparked controversy among investors, legal practitioners, banks, and government regulators. This comment examines the technology behind Initial Coin Offerings (ICO), and discusses the impact they have had on financial markets in the United States and across the globe. This comment also addresses the legal ramifications for companies issuing ICOs, and delves into the benefits of using blockchain technology as a means for transferring digital currencies and making business transactions. This comment further gives examples of current and potential regulations …

Advancing A Framework For Regulating Cryptocurrency Payments Intermediaries, Sarah Jane Hughes, Stephen T. Middlebrook

Articles by Maurer Faculty

This Article looks at competing models for regulating providers of services to individuals and businesses that take cryptocurrencies in payment for goods and services, including operators of online wallets and exchanges, and other cryptocurrency market intermediaries whose functions resemble "money service businesses" or "money transmission." We conclude that, in addition to whatever "money services" or "money transmission "prudential regulation the States or federal government may adopt, the operation of wallets and exchanges requires a new commercial law that lays out rights and liabilities of cryptocurrency users in a robust and transparent fashion. We use Article 4A of the Uniform Commercial …