Private Markets, Public Options, and the Payment System

The speed at which money moves between people and businesses in the United States lags well behind international standards. Slow payment speeds lead to inefficiency across the economy, drive demand for high-cost credit products, and have hampered the federal response to 2020’s pandemic-driven economic crisis. To speed up the payment system, the Federal Reserve (“Fed”) has announced its intention to build “FedNow,” a publicly operated, real-time payment platform, which would compete with a privately run platform in the interbank payment market. Critics claim that the Fed’s plan represents a historically unprecedented—and possibly illegal—encroachment on turf that properly belongs to the private sector. Against the Fed’s critics, we argue that the FedNow plan holds the capacity to achieve three objectives at the heart of payment policy in the United States: to catalyze innovation, enhance access to developing payment networks, and shore up financial stability

Lowering Legal Barriers to RPKI Adoption

Across the Internet, mistaken and malicious routing announcements impose significant costs on users and network operators. To make routing announcements more reliable and secure, Internet coordination bodies have encouraged network operators to adopt the Resource Public Key Infrastructure (“RPKI”) framework. Despite this encouragement, RPKI’s adoption rates are low, especially in North America.This report presents the results of a year-long investigation into the hypothesis—widespread within the network operator community—that legal issues pose barriers to RPKI adoption and are one cause of the disparities between North America and other regions of the world. On the basis of interviews and analysis of the legal framework governing RPKI, the report evaluates the issues raised by community members and proposes a number of strategies to reduce or circumvent the barriers that are material. The report also describes substantial action taken this year by the American Registry for Internet Numbers (“ARIN”) and other private organizations in light of public dialogue about RPKI

Coin-Operated Capitalism

This Article presents the legal literature’s first detailed analysis of the inner workings of Initial Coin Offerings. We characterize the ICO as an example of financial innovation, placing it in kinship with venture capital contracting, asset securitization, and (obviously) the IPO. We also take the form seriously as an example of technological innovation, where promoters are beginning to effectuate their promises to investors through computer code, rather than traditional contract. To understand the dynamics of this shift, we first collect contracts, “white papers,” and other contract-like documents for the fifty top-grossing ICOs of 2017. We then analyze how such projects’ software code reflected (or failed to reflect) their contractual promises. Our inquiry reveals that many ICOs failed even to promise that they would protect investors against insider self-dealing. Fewer still manifested such contracts in code. Surprisingly, in a community known for espousing a technolibertarian belief in the power of “trustless trust” built with carefully designed code, a significant fraction of issuers retained centralized control through previously undisclosed code permitting modification of the entities’ governing structures. These findings offer valuable lessons to legal scholars, economists, and policymakers about the roles played by gatekeepers; about the value of regulation; and the possibilities for socially valuable private ordering in a relatively anonymous, decentralized environment

Lowering Legal Barriers to RPKI Adoption

Across the Internet, mistaken and malicious routing announcements impose significant costs on users and network operators. To make routing announcements more reliable and secure, Internet coordination bodies have encouraged network operators to adopt the Resource Public Key Infrastructure (“RPKI”) framework. Despite this encouragement, RPKI’s adoption rates are low, especially in North America.This report presents the results of a year-long investigation into the hypothesis—widespread within the network operator community—that legal issues pose barriers to RPKI adoption and are one cause of the disparities between North America and other regions of the world. On the basis of interviews and analysis of the legal framework governing RPKI, the report evaluates the issues raised by community members and proposes a number of strategies to reduce or circumvent the barriers that are material. The report also describes substantial action taken this year by the American Registry for Internet Numbers (“ARIN”) and other private organizations in light of public dialogue about RPKI