In recent years, a number of regulatory agencies have increasingly utilized enforcement actions rather than formal rulemaking to achieve desired policy outcomes. Critics argue that this “regulation by enforcement” raises legal concerns involving fair notice, the rule of law, and the Administrative Procedure Act. One prominent example of this phenomenon is the regulation of the cryptocurrency industry, where explosive innovation and growth have left many players appealing for clear rules of the road, rather than unpredictable enforcement actions carried out by a variety of federal agencies, including the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), and the Financial Crimes Enforcement Network (FinCEN).
While the SEC has declared that Bitcoin and Ether, the two largest cryptocurrencies, are not securities, the agency has increasingly brought lawsuits arguing that other coins must be registered as securities, relying on New Deal-era statutes and the Supreme Court’s 1946 Howey test. Most notably, the SEC recently filed suit against Ripple Labs claiming that XRP, the popular cryptocurrency Ripple launched almost a decade ago, is an unregistered securities offering.
In this live podcast, an expert panel discusses SEC v. Ripple Labs, the broader cryptocurrency regulatory landscape, and potential legislative and regulatory reforms.
Featuring:
– John Berlau, Senior Fellow, Competitive Enterprise Institute
– John Deaton, Managing Partner, Deaton Law Firm
– Carol Goforth, University Professor and Clayton N. Little Professor of Law, University of Arkansas School of Law
– Roslyn Layton, Founder, China Tech Threat; Visiting Researcher, Aalborg University Center for Communication, Media, and Information Technologies; Senior Contributor, Forbes
– [Moderator] Curt Levey, President, Committee for Justice
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.