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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
Get PDFThis 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 suggests that regulating providers of virtual-currency products and services is a course preferable to regulating the products and services themselves
The Post-Truth First Amendment
Get PDFPost-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.
In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand to benefit from information-forcing laws are mainly information end users such as consumers, investors, and citizens. Often, compelled speech law sets the ground rules for the political conflict between these Information Haves and Information Have-Nots, where it becomes fertile ground for post-truth ideas.
The Article argues that post-truth ideas are particularly potent in courts’ application of the Zauderer doctrine, which governs a subset of disclosure laws. In a common interpretation—one endorsed by the Supreme Court last term in NIFLA v. Becerra—Zauderer provides lax scrutiny to laws that mandate disclosure of “purely factual and uncontroversial” information. As a result, many courts deciding a challenge to a disclosure law evaluate the “controversiality” of the information subject to disclosure. In this approach, “controversial” information—a broad category including information related to a public controversy or debate—enjoys greater protection from information-forcing law than uncontroversial information does. The Article argues that a legal framework that calibrates disclosure law to the controversiality of the underlying information is paradigmatically post-truth. It contends that, ultimately, by increasing protection of “controversial” information from disclosure, the Zauderer doctrine contributes to a post-truth information economy, in which the citizenry’s ability to engage in truth-seeking, self-fulfillment, and self-government is constrained by its lack of legal authority to reduce information asymmetries or to wrest information from Information Haves
The Federalism Challenges of Protecting Medical Privacy in Workers\u27 Compensation
Get PDFUnder current law, injured workers face a Hobson’s choice: They may file for workers’ compensation or maintain their medical privacy. The reason for this is that § 164.512(l) of the Health Insurance Portability and Accountability Act’s Privacy Rule (HPR) is widely misinterpreted by courts and legislatures as a wholesale waiver of privacy protections for injured workers. Section 164.512(l) excludes workers’ compensation from federal privacy protections that may frustrate the efficient administration of workers’ compensation claims. As the history and intent behind the HPR indicate, § 164.512(l) is premised on the assumption that states will protect workers’ privacy by creating and implementing their own privacy regimes. An original empirical survey detailed in this Article indicates states have not adequately provided such protections.
This Article argues that workers’ compensation programs must be aligned with the federal privacy protections of the HPR and proposes actions for the U.S. Department of Health and Human Services and the states to remedy privacy failures. The Article begins by explaining the misunderstood relationship between the HPR and workers’ compensation generally. It then discusses why § 164.512(l) is misconstrued. The Article suggests that the answer may be rooted in the unclear boundary between constitutionally grounded federal privacy protections and the historic role of states in administering their own workers’ compensation programs and protecting privacy.The Article argues that the protection of privacy in workers’ compensation highlights a unique federalism relationship—what this Article terms “symbiotic” federalism—whereby the federal and state governments are mutually dependent on one another to ensure privacy is protected. Under this reading, workers’ compensation statutes must be interpreted “through,” or in the spirit of the HPR, and contrary law preempted
Property, Agency, and the Blockchain: New Technology, and Longstanding Legal Paradigms
Get PDFThis article, presented first as the keynote address at the February 2019 Symposium “The Emerging Blockchain and the Law” at Wayne State, explores the need for repetitive considerations of how blockchain technology affects our traditional concepts of property and agency. The article concludes that well-tested norms of property and agency may matter more, not less, when new technologies such as blockchain are used
Bitcoin: Order Without Law in the Digital Age
Get PDFModern law makes currency a creature of the state and ultimately the value of its currency depends on the public’s trust in that state. While some nations are more capable than others at instilling public trust in the stability of their monetary institutions, it is nonetheless impossible for any legal system to make the pre-commitments necessary to completely isolate the governance of its money supply from political pressure. This proposition is true not only today, where nearly all government institutions manage their money supply in the form of central banking, but also true of past private banking regimes circulating their notes under the shadow of public law. However, bitcoin represents a potential third currency regime far more resistant to state control because it mints currency units that exist in no physical place, places a numerical ceiling on the number of units that can be created, and relies on scientific principles from cryptography to guarantee that ceiling and verify any person-to-person transfer. The trust required is not in any government but in the decentralized order of those who verify bitcoin transactions and those who create the software these verifiers choose to run on their connected computers.
This Article explores the fundamental structure of bitcoin, first by demystifying it as a technology, and second by showing how its decentralized order contrasts with other currency regimes. Unlike governments that use the power of law to compel action, bitcoin relies on a system of built-in incentives to encourage behavior that benefits not only those seeking to use bitcoin, but also bitcoin miners—those who voluntarily undertake the task of maintaining the payment network. While currently bitcoin is too volatile to compete with all but the worst government-issued currencies, the qualities of this system may give bitcoin a long-term advantage over many currencies. As the bitcoin ecosystem continues to grow, its nonlegal order can help it climb the rungs of stability created by distrust in government.
The technology underpinning bitcoin is the next point of innovation in the digital age—the same era that has already seen software create institutional disruption from Amazon, Facebook, and Uber, among many others. As bitcoin gains in popularity, it offers a platform for other kinds of technological alternatives to traditional legal regimes, like smart contracts. Bitcoin’s order without currency law will facilitate other forms of order with less law.
This is a propitious time for fundamental examination of bitcoin. Despite experiencing significant speculation and volatility throughout late 2017 and early 2018, its ten-year history demonstrates a downward trend in volatility and an upward trend in market capitalization
