The SEC, Cryptocurrencies, and Facebook’s Libra: The SEC’s Approach to Cryptocurrency Markets and How the Tech Giant’s Involvement Could Change the SEC’s Regulatory Oversight of Cryptocurrencies

(Source) The SEC’s position on whether cryptocurrencies should be — or can be — classified as securities is far from clear, making it difficult for the public to understand how the cryptocurrency and token industry will be regulated by the federal government. In March 2019, Coincenter — a blockchain legislative advocacy group — published correspondence explaining that the SEC’s staff analysis confirmed that Ethereum and similar cryptocurrencies (including Bitcoin) are not subject to securities laws. Previously, in June 2018, SEC Chairman Jay Clayton stated in a CNBC interview that Bitcoin was not a security. These statements have created a precedent and have led to confusion as the SEC now tries to re-adjust the parameters regarding classifying cryptocurrencies given the surge of initial coin offerings (ICOs) and token launches over the past few years. The Securities Act of 1933 and the Securities Exchange Act of 1934 state that transactions qualifying as “investment contracts” are deemed securities and thus are subjected to SEC oversight regarding disclosure and registration requirements. Traditionally, the SEC has relied on the Howey test for determining the classification of a security. The Howey test, which arose following the 1946 Supreme Court case SEC v. W.J. Howey Co., offers [read more]

Stepping Up: The First Step Act and Criminal Justice Reform

(Source)   America incarcerates people at a higher rate than any country in the world. The highly politicized War on Drugs led to a spike in incarceration, particularly in lower-income and minority communities. Although the prison population in the United States has declined since 2016, incarceration and recidivism rates remain high. According to a study by the United States Sentencing Commission, more than half of a group of 25,000 recently released individuals were rearrested for new crimes or violations of supervision conditions. Although recidivism rates vary depending on factors such as sentence length and an individual’s previous exposure the criminal justice system, the overall rate of recidivism looks bleak. In 2018, Congress enacted the First Step Act to target high mandatory minimum sentences and recidivism rates in the federal carceral system.   A First Step Forward The First Step Act reforms mandatory minimum sentencing laws, introduces earned time credit and improves good time credit systems, and remedies compassionate release programs in federal prisons. Mandatory minimum sentencing laws restrict judicial discretion in sentencing and force judges to impose certain penalties for certain crimes, typically focusing on drug-related offenses. The Anti-Drug Abuse Act of 1986 is the major source of mandatory minimum [read more]

Climate Crisis: Removing Authority from U.S. Military Commanders Over Sexual Assault Cases May Remedy the Prevalence and Underreporting of Sexual Assault

(Source)   The latest Department of Defense (DoD) Annual Report on Sexual Assault in the Military reports an increase in instances of sexual assault in the U.S. military (military). While rates of sexual assault increase, rates of conviction and punishment remain unchanged. The current military justice system allows for the accused’s unit supervisor (hereinafter “Commander”) to play a significant role in how sexual assault cases are resolved. While Pentagon officials promise to take more aggressive action in addressing sexual assault, it is often questioned whether the military is “equipped to police and reform itself.” According to a study commissioned by the DoD, an estimated 20,500 service members “experienced some kind of contact or penetrative sexual assault in 2018.” This is a 38% increase since the 2016 survey. The same study found that while rates of sexual assault against men remained steady, rates of sexual assault against women increased by almost 50%. With less than one-third of military survivors reporting sexual assault, and 6,053 reports of sexual assault in the 2018 fiscal year, there appears to be a greater institutional problem within the military justice system. Military sexual assault reports are processed either through the restricted or unrestricted reporting systems. Restricted [read more]

Teaching is Taxing: Why Congress Should Expand the Educator Expense Deduction

(Source)   In December of 2017, President Donald Trump signed into law the Tax Cuts and Jobs Act (TCJA) which generally went into effect on January 1, 2018. The TCJA, which has come to be known by some as the “largest tax overhaul in three decades,” has reformed many aspects of the individual federal income tax. Some of the more prominent changes include increasing the Child Tax Credit from $1,000 to $2,000, nearly doubling the standard deduction, and restructuring individual marginal tax brackets. In essence, the TCJA has effectively reduced the average tax bill for the majority of individual taxpayers across every income group. Despite some of its more positive changes, not all individuals received the relief they expected. In fact, what concerned many about the TCJA involved not what it changed about the tax code with respect to individuals, but rather, what it left unchanged—the Educator Expense Deduction. The Educator Expense Deduction, initially introduced in 2002 by Republican Senator Susan Collins and made permanent in 2016, allows teachers, teacher’s aides, principals, and counselors to take an above-the-line deduction for books and supplies that they purchase for their students if they work at least 900 hours per year. As it [read more]

“May I Have This Dance?”: Issues with the “Work-for-Hire” Doctrine and Coercive Contracts in Claiming Ownership of Choreography

(Source)   In recent years, a number of television networks have created and successfully marketed shows focused on dance and choreography. These programs, such as So You Think You Can Dance, Dancing with the Stars, and World of Dance have created many jobs for choreographers and have, in turn, benefitted those choreographers by promoting their work and providing them recognition among dancers and nondancers alike. However, the structure of these programs and the process by which one might acquire ownership of the choreographic works implicate important issues surrounding copyright. As these shows grow in popularity, choreographers with recurring roles and amateur dance groups who appear on the programs might find themselves in trouble when later pursuing their own creative ventures, as much of their choreography is likely owned by the networks under restrictive contracts or under a doctrine known as “work-for-hire.” Copyright Law’s primary purpose is to fulfill Congress’ power under U.S. Constitution Article I, Section 8 to “promote the progress of Science and useful Arts.” Prior to 1976, choreography copyright was not expressly covered by law, but could be claimed under the category “dramatic works.” The Copyright Act of 1976 (hereafter, “the Act”) therefore introduced a new medium of [read more]

Vaccinations and Preventable Diseases: Implications of Changes in Vaccination Policies

(Source)   Lately, vaccines have stirred up a lot of controversy. Anti-vaccinators have taken to the internet to expose supposed horrific results of the practice. This assault on a practice that is imperative to the health of our societies has turned heads and started debates. Misinformation about vaccines is all too common and public health organizations are doing their best to contest baseless assaults on the practice. Prominent public figures, such as Robert F. Kennedy Jr., are weighing in on the debate and contributing to the spread of misinformation.   Because of recent opposition to vaccinations, the United States is currently suffering from the worst measles outbreak in twenty-five years. The CDC reports that from January 1st to September 12th, 2019, 1,241 individuals have been infected with measles across thirty-one states. While the majority of these cases are found among unvaccinated individuals, the disease has become so pervasive that it is spreading to infants who are too young to be vaccinated. The House Committee on Energy and Commerce has identified the spread of preventable diseases as a growing public health threat. The current discussion and debate surrounding vaccines has drawn nation-wide attention. As a result, the government has started to [read more]

Jumping on the Ban-wagon: As Vaping Associated Illnesses Rise, Governments and Corporations Take Action

(Source)   As of September 17, 2019, there have been 7 reported deaths and 530 cases of lung injury associated with e-cigarettes and vaping. Doctors across the country are struggling to determine the true cause of this illness with a high incidence among vape product users. Doctors are unable to even prescribe a uniform diagnosis to the condition, with some using the term “vaping-associated lung injury,” or “VALI.” Many believe these vaping-related illnesses are due to additives—namely Vitamin E acetate—found in some THC vaping products. The Center for Disease Control and Prevention (CDC) has detected Vitamin E acetate in many of the samples tested during  , but it has not been present in all. While the CDC cannot conclusively determine that Vitamin E acetate is the cause of these mysterious illnesses, they recommend avoiding inhaling the oil. In response to this mysterious vaping illness, governments and private corporations alike are striving to heavily regulate e-cigarettes and vaping products. On September 11, 2019, the Trump administration announced it would seek to ban the sale of flavored e-cigarettes at the federal level. The U.S. Food and Drug Administration (FDA) is currently outlining a plan to remove all non-tobacco flavored e-cigarettes and nicotine [read more]

National Security Ontology, Part I: Marsha Berzon and the State Secrets Privilege

(Source)   The first several years of the Trump Administration have proven to be a renaissance for national security law.  Aside from the obvious headline grabbers—the Travel Ban, the emergency declaration, and, of course, the Mueller Investigation—there have been several important lower federal court decisions.  These decisions are significant in that they are some of the first to deal with the ontology of different national security rules and doctrines.  One of my old professors once blogged that “[o]ntology is a fancy word for the nature of a thing.”  By that he meant that ontology, at least in the legal context, helps explain what the source of a legal rule is—whether it is a constitutional rule, a rule of federal common law, or is derived from a statute—to better understand its characteristics.  The ontology of different legal rules is especially important where those rules impact the separation of powers.  That’s because the source of a legal rule establishes the role of each branch.  For example, scholars have focused on the ontology of the Miranda warnings and the substantive canons of construction (rules like the rule of lenity that guide judges in interpreting statutes according to some policy).  If Miranda is a [read more]

Supreme Court to Hear Landmark LGBTQ Cases

On Monday April 22, 2019, the Supreme Court of the United States has agreed to hear three cases which seek rulings on whether sexual orientation, transgender status, and transitioning status are protected under Title VII of the Civil Rights Act after years of courts and government agencies taking conflicting positions on this landmark issue. The Supreme Court will likely issue decisions on these hot button cases in 2020 at the beginning of the next presidential election race. Title VII makes it unlawful for an employer to discriminate against any individual “because of” the individual’s sex. While it is understood that the phrase “because of sex” includes gender stereotyping, the law remains in flux as to whether discrimination “because of sex” includes discrimination based on sexual orientation, transgender status, and transitioning status. Numerous courts and federal government agencies have taken opposing stances on this issue. For example, the Department of Justice (“DOJ”) has filed an amicus brief arguing that discrimination based on sexual orientation is not encompassed as discrimination “because of sex” under Title VII. The DOJ’s brief directly conflicts with the Equal Employment Opportunity Commission’s (“EEOC”) stance, as articulated in an amicus brief, which contends that sexual orientation falls squarely [read more]
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