Science and Technology Law Commons^™

Bankrupt Crypto Organizations, Kara Bruce, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

This Article provides the first comprehensive analysis of the intersection between decentralized autonomous organizations (DAOs) and American bankruptcy law. DAOs are blockchain-based entities that enable individuals to pursue common goals using decentralized decision-making and automated governance. Since their recent emergence, DAOs have proliferated dramatically—with over 20,000 organizations managing over $20 billion in assets and engaging in activities ranging from investment management to real estate and even attempting to purchase historic copies of the U.S. Constitution. Yet like any other organization, DAOs can fail, creating an urgent need to understand what happens when unstoppable code meets immovable bankruptcy law.

Our investigation …

The New Legal Tender Debate: Surveying State-Level Attempts To Regulate Central Bank Digital Currencies, Jacob Gerszten

Michigan Technology Law Review

This Note explores the growing wave of state-level legislation aimed at regulating Central Bank Digital Currencies (CBDCs). CBDCs, digital forms of central bank-issued money, have sparked intense political debates between proponents who see them as the logical next development in monetary technology and critics who perceive them as threats to privacy and financial system stability. Although a widely available CBDC appears unlikely without Congressional authorization, sixteen states have enacted laws designed to preempt its development, with more statutes likely to follow. These state statutes employ various legal mechanisms, including redefining terms in the Uniform Commercial Code, prohibiting CBDC-related payments to …

Finding Law When There Is None: An Analysis Of Litigation Concerning Non–Fungible Tokens (Nfts), Shelby T. Roberts, O. Hayden Griffin, Iii

University of Miami Business Law Review

The development of new technologies tends to give rise to the same quandary: how can these technologies flourish while also protecting citizens from any collateral consequences? How much latitude and freedom should innovators be given in pursuing these technologies is often debated. Non–fungible tokens (NFTs) are one of several products that utilize blockchain technology. NFTs have been hailed by some as the future of commerce while others have derided NFTs as a scam–ridden fad. With virtually no legislation or regulations specifically designed to govern NFTs, a content analysis of litigation involving NFTs was conducted as an effort to help determine …

An Out-Of-The-Block Solution For Modern Ip Law: How Pairing Generative Ai With Blockchain Could Resolve Copyright Conflicts, Emma Wozniak

University of Cincinnati Law Review

No abstract provided.

Crypto In The Courtroom: A Legislative Framework For Managing Crypto Assets In Bankruptcy, Katelyn E. Barker

University of Miami Law Review

The rapid rise and subsequent collapse of the cryptocurrency market exposed a critical shortcoming of bankruptcy law: the absence of clear guidelines for the treatment of crypto assets. The Bankruptcy Code—which predates the invention of crypto—fails to account for the unique complexities of crypto assets. Although several crypto bills have been introduced, they fall short of adequately confronting the complex and evolving challenges of crypto bankruptcies. The lack of guidance has forced courts to make consequential decisions with no clear direction, leading to inconsistent outcomes in areas such as crypto asset ownership, valuation, and customer protections.

This Note examines bankruptcy …

Crypto Regulation In The Time Of Trump, Lawrence J. Trautman

Michigan Technology Law Review

Donald Trump’s election as president during November 2024 results in perhaps the most dramatic philosophical change in approach to governmental regulation in over ninety years. The Great Depression of the 1930s created a need for regulatory reform and resulted in the advent of such new regulatory frameworks as the U.S. Securities and Exchange Commission (SEC). It has been the purpose of the SEC to create and nurture efficient securities markets enabling vibrant capital formation while preventing fraud upon the investing public. At issue is the contrast between the regulatory regime in place since 1933-34 and the Trump Administration’s desire to …

Debt Tokens, Andrea Tosato, Diane Lourdes Dick, Christopher K. Odinet

Faculty Scholarship

The worlds of crypto and bankruptcy have collided. Once-prominent, fast-growing, and even politically influential platforms for trading cryptocurrencies have imploded spectacularly. Gone are the glossy advertisements, celebrity endorsements, and proclamations that blockchain operates as a law unto itself. Instead, insolvent crypto businesses—including the crypto exchange giant FTX—find themselves in bankruptcy court, no different from any other failed enterprise. These bankruptcies reveal a startling reality: individual investors who placed their trust in these platforms have been stripped of their digital assets. In their stead, they hold hard-to-collect claims against these defunct platforms.

Amid the chill of the crypto winter, bankruptcy has …

Infringing Information Architectures, Michael Goodyear

Articles & Chapters

Information architectures—systems that facilitate storing and sharing data and content—underpin daily life, from streaming sites like Netflix and Hulu to social media platforms like Instagram and TikTok. Since the printing press, these systems and their novel features have challenged the bounds of copyright law, leading to accusations that providers and users directly infringe others’ copyrights. Almost fifty years ago, however, a largely unexplored paradigm shift occurred. Copyright owners started to allege that information architecture providers should be broadly secondarily liable for all their users’ infringements. These claims, which this Article terms architectural infringement claims, pose an acute challenge to the …

From Cypherpunks To Decentralized Finance: How Crypto-Anarchy Is Redefining Legal And Economic Systems, Alesia Zhuk

Markets, Globalization & Development Review

This article explores the evolution of crypto-anarchy, tracing its origins from the cypherpunk movement to the rise of decentralized finance (DeFi) and its transformative effects on legal and economic systems. Central to crypto-anarchy is the belief in individual empowerment through privacy, financial autonomy, and decentralization, which allows users to bypass traditional intermediaries like banks. While these technologies offer increased freedom and financial inclusion, they also introduce significant risks such as money laundering, tax evasion, and the facilitation of illegal activities, posing challenges to current regulatory frameworks. The article examines the socio-economic implications of decentralization, including both the democratization of finance …

Debt Tokens, Andrea Tosato, Diane Lourdes Dick, Christopher K. Odinet

Faculty Journal Articles and Book Chapters

The worlds of crypto and bankruptcy have collided. Once-prominent, fast growing, and even politically influential platforms for trading cryptocurrencies have imploded spectacularly. Gone are the glossy advertisements, celebrity endorsements, and proclamations that blockchain operates as a law unto itself. Instead, insolvent crypto businesses—including the crypto exchange giant FTX—find themselves in bankruptcy court, no different from any other failed enterprise. These bankruptcies reveal a startling reality: individual investors who placed their trust in these platforms have been stripped of their digital assets. In their stead, they hold hard-to-collect claims against these defunct platforms. Amid the chill of the crypto winter, bankruptcy …

The Contractarian Joint Venture, Carla L. Reyes, Christine Hurt

Faculty Journal Articles and Book Chapters

In 2015, a group of entrepreneurs pooled their money together for the purpose of investing in other businesses. The entrepreneurs could have undertaken this activity through a traditional venture capital firm, but they wanted to cut out the middle-man, reduce fees, and retain more control over their capital, so they chose to undertake their investing on their own. The group of entrepreneurs chose not to form an entity. Instead, they attempted to limit their business and liability risk by conducting their activity entirely via software. Unfortunately, the software contained a bug, and an insider siphoned off millions of dollars belonging …

On Blockchain As A Tool Against Corporate Corruption, Yannis Normand

Northwestern Journal of International Law & Business

Over the last decades domestic and international legal frameworks have successfully coalesced to limit corrupt behavior worldwide. However, despite their success, current regulatory tools are not sufficiently well-equipped to address corruption in modern economic settings. These mechanisms can often be too costly to implement, too cumbersome to induce compliance, politically manipulatable, and may disincentivize foreign investment and internal corporate monitoring efforts. To address such drawbacks, policymakers should consider the introduction of blockchain-based tools in developing future anti-corruption efforts.

Blockchain can serve as a foundation for structures that can make it more attractive, easier and cost-efficient to monitor economic transactions, to …

From Bitcoin To Courtrooms: The Evolution Of Blockchain Technology And Its Applications, Isabelle Cruz

Wyoming Law Review

Blockchain’s tamper-proof, distributed, and decentralized design has gained popularity during a period of rising cybercrime and data vulnerability. People revere blockchain for its potential to revolutionize various industries and criticize it for its association with unethical and illicit activities. Despite challenges and misconceptions surrounding its prior uses, blockchain technology has continued progressing—offering promising solutions for enhancing data security, transparency, and accountability. This Comment examines the evolution of blockchain technology, its applications, and how it can improve efficiency and enhance public trust in the judicial system. After outlining blockchain technology’s modest beginnings, this Comment theorizes several applications for blockchain in the …

Blockchain: A Practical Solution To Monitor Corporate Supply Chains, Gaige J. Graham

Wyoming Law Review

The persistence of human rights abuses within the Democratic Republic of the Congo (DRC)—particularly in the cobalt mining industry— underscore the failure of international labor protections and corporate due diligence. Despite the International Labor Organization and United Nations Guiding Principles on Business and Human Rights (Ruggie Principles), corporations continue to profit from child labor, forced labor, and unregulated artisanal mining. Existing accountability mechanisms, reliant on state enforcement and voluntary corporate compliance, have proven inadequate to address these labor issues. This Comment argues that blockchain technology offers a practical, scalable solution for supply chain transparency, capable of mitigating labor rights violations …

Decentralized Dispute Resolution: Using Blockchain Technology And Smart Contracts In Arbitration, Christoph Salger

Pepperdine Dispute Resolution Law Journal

Can blockchain technology and smart contracts be used in the context of alternative dispute resolution, particularly arbitration, turning traditional procedures on their head? This article discusses various possible applications of blockchain technology and smart contracts in ADR. In particular, it addresses the possibility of fully automated execution of arbitral awards using a smart contract through so-called escrow mechanisms. Subsequently, it presents two promising approaches of so-called Decentralized Dispute Resolution (DDR), including Expert-Pooling and Crowdarbitration. DDR generally involves decisions made jointly by multiple or even all participants in a network (usually a blockchain network), rather than by just one or two …

Legal Uncertainty In Virtual Worlds And Digital Goods: Do The Same Laws Apply?, Alanna Sadler

University of Miami Business Law Review

The growth of virtual worlds and digital goods will force US courts to examine whether traditional laws are sufficient to protect consumers. To do so requires judges and legislative officials to possess a deep understanding of concepts that are everchanging. Many aspects of virtual worlds, such as the metaverse(s), are driven by web3 technology, the technology responsible for the NFT and cryptocurrency craze of recent years. It is impossible to ascertain the impact of virtual worlds on daily life, however, companies must nevertheless prepare for the shift toward virtual spaces and digital goods. There is greater skepticism regarding the utility …

Fitting A Block Into A Sphere Mold: The Inadequacy Of Current Data Privacy Regulations In Protecting Data Privacy Within The Blockchain Space, Jenny Yang

Washington and Lee Journal of Civil Rights and Social Justice

Despite global imposition of data privacy laws and regulations, data privacy is a nonexistent luxury amongst the data-charged world we live in. Data privacy has long been established as a fundamental right. Entities have successfully established robust methodologies around existing data privacy laws and regulations to utilize past consumer behavior to predict, impact and manipulate current and future consumer behaviors. This phenomenon has been commonly coined as “corporate surveillance.” Emerging spaces arising through technological developments have greater access into consumer data to impact economic choices. Specifically, the blockchain space, through its unique open-source and permanent traits, has been able to …

Crypto-Counterfeiting, Joshua Fairfield

Scholarly Articles

The current crypto winter has given rise to a range of legal challenges. One of the most important sets of legal challenges goes to the heart of cryptocurrency. Cryptocurrency was intended to be non-duplicatable at will, that is, not to be counterfeitable. Blockchain technology is supposed to prevent token counterfeiting through a combination of game theory and cryptography that prevents normal users from simply ordering the system to generate more tokens for their benefit.

The difficulty is that blockchain software is still software. People in charge can order and program the software to generate many more tokens for those individuals’ …

Trademarks On The Blockchain: Nft Domains And Collisions, Jelena Laketić

Michigan Technology Law Review

Blockchain technology supporting cryptocurrency transactions is one of the most critical innovations of this decade. Establishing a legal identity on blockchain, however, is fraught with uncertainty. In the 1990s, the internet faced a similar set of issues, which were resolved through the ICANN dispute resolution system. This Article asserts that blockchain technology urgently needs a similar cohesive approach to NFT domains.

This Article will explore trademark issues with non-fungible tokens (NFTs), specifically NFT domains. It begins by exploring the fundamental structure of NFTs by demystifying the technology and showing how NFTs contrast with other currency regimes. Increased usage of NFTs …

How The Blockchain Undermined Digital Ownership, Aaron Perzanowski

Washington and Lee Law Review

The shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years—the proliferation of new cryptocurrencies and the …

Tax Reporting As Regulation Of Digital Financial Markets, Young Ran (Christine) Kim

Articles

FTX’s recent collapse highlights the overall instability that blockchain assets and digital financial markets face. While the use of blockchain technology and crypto assets is widely prevalent, the associated market is still largely unregulated, and the future of digital asset regulation is also unclear. The lack of clarity and regulation has led to public distrust and has called for more dedicated regulation of digital assets. Among those regulatory efforts, tax policy plays an important role. This Essay introduces comprehensive regulatory frameworks for blockchain-based assets that have been introduced globally and domestically, and it shows that tax reporting is the key …

The Intersection Of Nfts And Structured Finance, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

Blockchain technology, cryptocurrencies, stablecoins and non-fungible tokens (NFTs) continue to invade financial markets. Whether through partnerships between financial institutions and tech firms or through in-house initiatives at some of the nation’s largest banks, blockchain-based products, services, and transactional structures are a major point of interest. In a recent work by Professor Steven Schwarcz, the growing NFT market is analyzed using the traditional tools of structured finance. Creating a new conceptual model called non-cash-flow monetizations, Professor Schwarcz reveals the risks to investors and markets, if the tokenization of non-traditional and largely illiquid assets proliferates. Having identified the potential harms, he offers …

Ripple Effect: The Sec's Major Questions Doctrine Problem, Matt Donovan

Fordham Law Review

Crypto assets and blockchain technology have the potential to create unprecedented equitable access to financial institutions. Despite this potential, there is a robust debate regarding federal agencies’ jurisdiction over the novel asset class. Without clear statutory guidelines, federal agencies have been forced to resolve this debate through the rulemaking process. However, agency rules regarding jurisdiction over crypto assets could be scrutinized by a reviewing court under the major questions doctrine. Once highly deferential to agency rules, the U.S. Supreme Court in recent terms has repeatedly struck down agency rules when an agency claims an unheralded power to regulate an issue …

Note: Nft Art Heists: Analyzing Nfts Under U.S. Law And International Conventions On Art Theft, Kevin D. Brum

Notre Dame Journal on Emerging Technologies

The non-fungible token (“NFT”) is a type of digital asset that is usually associated with an image and has a unique identifier. An NFT cannot be copied or reproduced, and records of NFT transactions are stored on the blockchain. NFTs are a recent innovation and have swept the world by storm. NFT sales tripled from 2019 to 2020 and DappRadar—the premier platform for hosting decentralized NFT portfolio management applications—estimates that NFT sales hit twenty-five billion dollars in 2021. Many NFTs appear to be artistic works and, either individually or in a collection, can be given away for free, sold for …

Blockchain Real Estate And Nfts, Juliet M. Moringiello, Christopher K. Odinet

Faculty Scholarship

Non-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.

In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized …

Regulating Uncertain States: A Risk-Based Policy Agenda For Quantum Technologies, Tina Dekker, Florian Martin-Bariteau

Canadian Journal of Law and Technology

Many countries are taking a national approach to developing quantum strategies with a strong focus on innovation. However, societal, ethical, legal, and policy considerations should not be an afterthought that is pushed aside by the drive for innovation. A responsible, global approach to quantum technologies that considers the legal, ethical, and societal dimensions of quantum technologies is necessary to avoid exacerbating existing global inequalities. Quantum technologies are expected to disrupt other transformative technologies whose legal landscape is still under development (e.g., artificial intelligence [‘‘AI”], blockchain, etc.). The shortcomings of global policies regarding AI and the digital context teach lessons that …

Floating Liens Over Crypto-In-Commerce, Christopher K. Odinet, Andrea Tosato

Indiana Law Journal

Commercial law and crypto are colliding. Against the backdrop of explosive growth (and discord) in the digital asset market, there has been a series of recent revisions to American commercial law aimed at addressing new and emerging technologies. These changes to the Uniform Commercial Code (UCC) are designed to facilitate the buying and selling of digital assets as well as their use as collateral. However, to date, the literature exploring these changes has mainly focused on understanding the basics of the new regime. This Essay moves beyond that baseline by showing how the UCC amendments can be used to structure …

Blockchain And The Right To Good Administration: Adding Blocks To Or Blocking Of The Globalization Of Good Administration?, Migle Laukyte

Indiana Journal of Global Legal Studies

In this article, the author addresses the complex and multifaceted relationship between the right to good administration enshrined in the Charter of Fundamental Rights of the European Union and the uses of blockchain technology by the public administration, which is in charge of making the right to good administration real. The opportunities and threats come hand in hand, and there is an urgent need to push forward a public debate on the uses and misuses of blockchain to guarantee public services, so much so that many aspects of blockchain are not compatible with citizens’ expectations in relation to the public …

New Frontiers In Technology: Can Traditional Intellectual Property Rights Laws Be Adapted And Applied To Nfts?, Mariyah S. Wakhariya

Catholic University Journal of Law and Technology

A decade ago, ‘NFTs’ were rarely heard of or known to anyone, unless they worked in or kept up with the tech world. However, they are not new - they have been around for almost two decades. Their popularity has grown over the past few years. ‘NFT’ stands for ‘non-fungible token’. An NFT is a digital file with a unique identity that is verified on a blockchain and is therefore not interchangeable - i.e., a kind of crypto asset, like an authentication certificate for digital artifacts. In theory, NFTs can represent almost any real or intangible property. These days, it …

Blockchain Games And A Disruptive Corporate Business Model, Xuan-Thao Nguyen

Articles

This Article is the first to identify and theorize on a new disruptive corporate business model unfolding in the gaming industry that is larger than both the movie and music sectors combined. Corporations in blockchain gaming reject the old paradigm of amassing profits by turning the public into spenders for and consumers of corporate products. The new corporate business model transforms members of the public into producers and true owners of new corporate property while earning income and garnering governance voting rights. Through a case study of Axie Infinity, a blockchain game launched in 2021, this Article explores how the …