Ghosting the Crowd

Crowdfunded companies are legally bound to provide investors with an annual report--but most don\u27t. This ghosting of the crowd violates federal securities laws and raises the risk of opportunism by entrepreneurs, who are more prone to misbehave if no one is watching. Most ominously, it threatens the very viability of the investment crowdfunding market, as investors who are ghosted by one company are less likely to invest in another. This Article reports on the embarrassing record of noncompliance with the annual report rule imposed by the Jumpstart Our Business Startups ( JOBS ) Act of 2012 and Regulation Crowdfunding, and proposes a simple solution: Crowdfunding platforms should withhold one percent of the capital raised by an issuer and only release it once the company files its first annual report. Due to competitive pressure, however, any given crowdfunding platform is unlikely to impose such a rule on its own; Securities and Exchange Commission ( SEC ) action is needed. This Article accordingly concludes with a proposed regulation readymade for the SEC to adopt

Loyalty Disarmament and the Undocumented

Since the Supreme Court\u27s District of Columbia v. Heller decision in 2008, lower federal courts have wrestled with Second Amendment claims raised by categories of people excluded from gun possession. Among those cases, several have been brought by noncitizens challenging their prosecutions under 18 U.S.C. § 922(g)(5), the federal criminal ban on possession by unlawfully present noncitizens. In the post-Heller § 922(g)(5) cases, judges have opined on whether unlawfully present noncitizens were among the people who had the right to bear arms and whether the government regulation met the appropriate level of constitutional scrutiny. More recently, however, the Supreme Court abandoned the tiers of scrutiny approach. In New York State Rifle & Pistol Association v. Bruen in 2022, the Court prescribed a novel history-focused inquiry in its stead. Since then, the federal government and several lower federal courts have sought to justify present-day gun restrictions by searching for historical antecedents created to address analogous public policy concerns in analogous ways. In conducting that historical inquiry for § 922(g)(5), several courts have conjured Revolutionary War-era statutes that disarmed Loyalists to the British Crown. This Piece explains why such an analogy is a poor fit, arguing that the respective statutes serve incommensurate purposes and operate in materially different ways. It concludes with the suggestion that continued reliance on Bruen\u27s methodology (and attendant analogies to Loyalist disarmament) portends diminished and precarious constitutional protections for noncitizens with regard to their self-protection and, more broadly, other fundamental constitutional guarantees

Teaching at the Intersection of Federal Indian Law and Environmental Law Courses

A discussion of the important role of Federal Indian Law in the practice of environmental and natural resources law and guidance on incorporating this intersection into traditional environmental law courses and curricula

Anchoring Digital Sovereignty

For a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet\u27s infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world\u27s democracies to keep the Internet free, open, and global; yet it is not the only way that international law knows to define the powers of a state. Drawing from the law of the sea, this Article argues that we should anchor the nature of state authority in cyberspace in the limited sovereign rights that coastal states possess in the waters off their shores. Unlike the plenary powers that sovereignty vests in states over their entire land territory, a coastal state\u27s sovereign rights weaken the further one goes out to sea, and they are subject to the rights of other states (and of their nationals) to engage in certain peaceful uses of such waters. By redefining state authority over cyberspace in terms of layers of sovereign rights that are subject to the digital rights of others, states can enact legitimate online regulations within international legal constraints that preserve the Internet’s free, open, and global character

Taxing Novelty

The advent of any new and unfamiliar economic activity sparks a flood of questions across a variety of legal fields, including tax law. This Article diagnoses the legal uncertainties surrounding novel activities as challenges of legibility in statecraft. Legibility is the process by which the state simplifies complex and often unfamiliar systems into a format that can be governed. Across broad areas of the law, placing things and activities into different legal categories is a means for the state to achieve legibility. This Article aims to incorporate the framework of legibility into existing scholarly discourse on legal categories. Through the case study of taxing cryptocurrency, this Article develops a descriptive account of how legal decision-makers render novel economic activities legible. This descriptive account uncovers ways in which achieving legibility can be challenging for these decision-makers and accompanying risks to legal systems, including the risks of legal arbitrage by powerful interest groups. The Article applies these insights to propose legal reforms specific to tax law. It advocates for tax law to move towards fewer tax categories, which can ease legibility challenges and reduce potential risks