Since Howey, Congress has failed to pass any new legislation that would directly involve the regulation of crypto. This should mean that it’s Congress’s intent that crypto’s de facto regulator is the CFTC, which has chosen a lighter touch because it fears stifling an emerging technology that blockchain and their digital assets represent. Yet Gensler has used this perceived lack of clarity to unleash a campaign of regulation by enforcement – stretching Howey beyond recognition. When Gensler looks at crypto, he not only sees an opportunity to regulate how the land and service contracts were sold, but an opportunity to regulate the oranges. As a legal theory, it should frighten everyone well beyond the crypto space.
‘Enforcement 40’ for 2020
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