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Neither a Borrower nor a Lender Be: Analyzing the SEC’s Reaction to Crypto Lending
Full text linkIn June 2021, the largest U.S.-based crypto exchange, Coinbase, announced plans to allow its customers to earn 4% interest on deposits of certain cryptoassets through a new “Coinbase Lend” program. Despite a positive reaction from its customers, on September 7, 2021, Coinbase announced it had received a notice from the Securities and Exchange Commission (SEC) to the effect that the Commission had preliminarily concluded that the proposed Lend program was a security and that Coinbase would be in violation of the federal securities laws if it proceeded. The threat of enforcement caused Coinbase to terminate the program. Shortly thereafter, in the wake of several state enforcement actions, the SEC also announced a settlement with BlockFi that terminated its crypto lending program in the U.S. Neither of these actions conclusively explained the test that the SEC was using to determine when a crypto lending program involves the issuance of a security. This article considers the appropriate test for evaluating crypto lending programs and concludes that in many cases, the appropriate test should look at whether there are “notes” that fit within the definition of security. This article suggests that the SEC is applying the federal securities laws too broadly without offering sufficient explanation for its interpretations and that the Coinbase Lend program in particular should not have been shuttered. The article concludes that continuing regulatory uncertainty as to the scope of the federal securities laws is depriving U.S. citizens of potentially valuable opportunities
Determining What’s Not Obvious: Should a Reasonable Expectation of Success Invalidate Patent Applications?
Full text linkPatents are necessary to incentivize innovation because they grant owners the right to protect inventions. To be patentable, an invention must be useful, it must be novel, and it must not be obvious. But the judiciary has struggled to apply the latter requirement, non-obviousness, particularly for highly technical innovations subject to FDA regulations. For these innovations, the progression through the regulatory jungle can take ten to twenty years and millions of dollars (2.6 billion for a pharmaceutical drug). The complexities of the regulatory process can also render an innovation unprotected by patent rights because, by the end of the process, the patent office may determine that the invention is “obvious” as a direct consequence of the process itself. But rendering inventions unpatentable merely because they show a reasonable expectation for success goes against the public interest. Because of the changing landscape of the path to the public domain and significant disincentives in regulated technologies, incentivizing innovation requires a reinterpretation of the obviousness standard
Towards an Understanding of Critical Race Theory: Dispelling False Claims and Misrepresentations
Full text linkThe Article discusses critical race theory as a paradigm shift, and further dispels the notion that it promotes a form of Marxism. With the rise of political attitudes toward seeking legislation to denounce CRT, it is incumbent upon those in legal studies to investigate and bring the value of CRT into the forefront. The purpose of this Article is to open a new discussion on these issues, rooted in promoting cultural competency in the legal profession
The Perfect Storm: A Look at the Robinhood Shutdown and the Shady Security Practices of Payment for Order Flow, Gamification, and Clickwrap Agreements
Full text linkSEC guidelines and Federal Courts have stated, and recently upheld, that brokerdealers do not owe a fiduciary duty to retail investors if they do not provide them with investment advice, but this opens up retail investors to significant and costly mistreatment by financial institutions with no avenue for recourse. Using payment for order flow, gamification, and click-wrap agreements by broker-dealers creates a conflict of interest between themselves and the retail investors they act on behalf of. This article argues that retail investors should have an avenue of recourse against financial institutions when they breach their duty to these investors by failing to act in their best interest. This article will focus on the Robinhood shutdown, the recent Best Interest regulation, and how the practices mentioned above can harm retail investors if misused. Additionally, this article will explore the current SEC standing on these practices and certain financial institutions’ perceptions of them. Lastly, it will pose the implementation of a broad fiduciary duty on those financial institutions and brokers that use these practices
Forced to Play and Forced to Pay: The Indigent Counsel Fee in Massachusetts as a Cost of Being Charged with a Crime
Full text linkWhen indigent defendants in Massachusetts are charged with a crime and receive a court-appointed lawyer, they are also charged something else: a fee. This $150 fee is imposed on criminal defendants by the state as soon as they receive a constitutionally guaranteed free legal defense. The Article focuses on this inherent contradiction and identifies its far-reaching effects in undermining individuals’ constitutional protections. Massachusetts’s indigent counsel fee chills the right to counsel, creating a straightforward result for indigent individuals who are faced with a choice between paying for a free lawyer and not disclaiming their constitutional right to one. The deeper problem is that this fee cuts across the presumption that every person is innocent until proven guilty. The Article then argues that the presumption of innocence is violated by obliging individuals to pay, or alternatively perform community service for free, by virtue of the state\u27s decision to bring criminal charges against them. Therefore, being charged with a crime already carries consequences and signals that the defendant is no longer considered fully innocent in a flagrant violation of the premise of a just legal system. There should be no grey area concerning the interpretation of either the presumption of innocence or for constitutional rights. There should be no fee for having been dragged into the criminal justice system by the government\u27s unilateral decision
Blatant Discrimination within Federal Law: A 14th Amendment Analysis of Medicaid’s IMD Exclusion
Full text linkA discriminatory piece of Medicaid law, the institution for mental diseases (IMD) exclusion, is denying people with serious mental illness equal levels of treatment as those with only primary healthcare needs. The IMD exclusion denies the use of federal funding in psychiatric hospitals for inpatient care. This article discusses the history and collateral implications of the IMD exclusion, then examines it through the lens of the Equal Protection Clause of the Fourteenth Amendment, argues that people with severe mental illness constitute a quasi-suspect class, and that application of intermediate scrutiny would render the IMD exclusion unenforceable
How to Expand Rape by Deception and Protect Consent
Full text linkThe trend towards accepting the violation of consent as the underlying wrong addressed by rape law conflicts with the almost universal rejection of rape by deception. Rape by deception is limited to fraud in the factum, however the exclusion of fraud in the inducement finds no support under a consent framework. The principal objections to the expansion of rape by deception are that it will criminalize common behavior, that rape by deception produces only minor harm, and that self-protection is a viable alternative. Analogizing from the criminalization of deception to obtain money shows that the criminal deception statutes need not be overbroad, and that self-protection is not an entirely feasible strategy. Moreover, rape by deception can in some circumstances produce the same core harms that distinguish forcible rape from other assaults. The problems raised by the critics of rape by deception can be avoided by adopting a test under which rape by deception is expanded to cover situations where a party has been made aware that the truth of an ascertainable representation relating to their person at the time of sexual intercourse is a prerequisite of consent to sexual intercourse and willfully deceives as to that representation with the intent of engaging in sexual intercourse. In recognizing the challenges surrounding such an expansion of criminalized rape by deception, a narrower test focused on core harms such as unwanted pregnancy and sexually transmitted infection is also offered
The PowerPoint Channel
Full text linkThis Article is the first to present a comprehensive theory and style for using PowerPoint to teach law. The theory is that presentation software adds a channel of communication that enables the use of images in combination with words. Studies have shown that combination to substantially enhance learning. The style is based on an extensive literature regarding the use of PowerPoint in teaching law and other higher education subjects as well as the author’s experimentation with PowerPoint over two decades. The Article states fourteen principles for slide or slide sequence design, provides the arguments from the literature for and against them, and explains the techniques by which the author implements them. It argues that PowerPoint is effective for eight purposes: (1) providing high-level overviews, (2) explaining concepts, (3) listing sets of rules or possibilities, (4) analyzing statutory or other language, (5) comparing statutes, rules, and concepts, (6) showing physical manifestations of the legal system such as documents or websites, (7) diagramming concepts, relationships, and transactions, and (8) supporting discussions by displaying the assumptions on which the discussions are based. The Article contains miniatures of fifteen full-color slides that exemplify both these uses and the design principles. It concludes that a PowerPoint channel that is on all the time is inevitable. But before that happens, law teachers must design the imagery through which law will be taught
Published Decisions Based on Westlaw Key Number Searches in Right of Publicity, Trademark, Copyright, and Patent 2010-2021
Full text linkResults of Westlaw key number searches in Right of Publicity (379 K383-409), Trademark (382 K1000-1800), Copyright (99 K220-1202), and Patent (291 K401-2094) for the years 2010 to 2021
Life’s Complexities: Rethinking Barnette, the Flag, Totalitarianism, and the First Amendment
Full text linkThis article rethinks the meaning of the 1943 Barnette case and questions the canonical status of Justice Robert Jackson’s famous opinion for the majority. On the assumption that we have lost sight of the logic that had been used to uphold compulsory flag salute laws, the article traces the many state court opinions on this topic prior to World War II. Also brought under scrutiny is Jackson’s usage of the term “totalitarian” to describe flag salute laws, a quasi-theological term promoted first and foremost by the Jehovah’s Witnesses. Jackson’s opinion in Barnette, while rhetorically compelling, was out of sync with his own First Amendment jurisprudence as a whole. Finally, the article highlights overlooked strengths of Justice Felix Frankfurter’s dissent in Barnette, notably his defense of state jurisdiction on the basis of epistemic pluralism. What makes Barnette a truly great case is not the often quoted passages in Jackson’s opinion but the complex interchange between Jackson and Frankfurter about the nature of democracy and judicial review