Property, Agency, and the Blockchain: New Technology, and Longstanding Legal Paradigms

This 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

Did New York State Just Anoint Virtual Currencies by Proposing to Regulate Them, or Will Regulation Spoil Them for Some?

This Essay previews issues raised by the general subject of regulating virtual currencies and the specific efforts of New York State’s Department of Financial Services’ proposed Virtual Currency Regulatory Framework (the BitLicense) in particular. It focuses on five topics in the proposal and their interplay with the current regulation of “money services” and “money transmission” in other states, using the Commonwealth of Virginia and the State of Washington approaches on a few common topics for comparison purposes. It also asks whether regulation of virtual currencies is likely to cause more widespread adoption of virtual currencies or to frustrate the proponents and current users and so reduce the use of virtual currencies

Federal Payroll, Gift, and Prepaid Card Developments: FDIC Deposit Insurance Eligibility and the Credit CARD Act of 2009

Prepaid and other stored-value products have grown into major tools for making retail payments and payments of wages to employees. This article discusses two major developments in federal law that pertain to stored-value products - the November 2008 - revision of primary guidance from the Federal Deposit Insurance Corporation on the scope of eligibility of payroll cards for deposit insurance, and Congress’ May, 2009 enactment of the CARD Act, which takes effect on February 22, 2010. The CARD Act is the first effort by the federal government to regulate gift cards. It established federal standards relating to subjects on which state laws varied widely, and preempts state laws. In addition, the CARD Act gave to the Board of Governors of the Federal Reserve System rule making authority over gift cards, general-use prepaid cards, and electronic gift certificates. The Act also grants to the Department of the Treasury authority to adopt comprehensive regulations concerning the issuance, sale, redemption and international transport of stored-value cards. This authority reflects growing concerns that money launderers are increasingly able to move funds through stored-value products

More Steps Toward Fully Electronic Interbank Check Collection and Return: Amendments to Federal Reserve Board Regulation CC and a Regulatory Resolution of a Circuit Split

This article analyzes two actions in 2017 and 2018, respectively, by the Board of Governors of the Federal Reserve System that amend Regulation CC, which governs expedited deposit availability and collection of checks generally and implements the Expedited Funds Availability Act of 1987 and the Check Clearing for the 21st Century Act of 2003. It selects examples from the two sets of amendments that highlight regulatory strategies being used by the Board to facilitate faster payments through the movement of electronic images of checks or electronic information among banks in the check-collection process. Those strategies involve creation of new forms of instruments that can be treated as checks or used to return checks to depositary banks, and, in the 2018 amendments, establishment of a presumption that reallocates risks in collection long a feature of Anglo-American payments law, the doctrine of Price v. Neal. The strategies offer evidence of the surgical precision with which the Board has acted over the past 30 years to modernize check collection regulation with little use of its authority to preempt state laws, primarily Articles 3 and 4 of the Uniform Commercial Code (“UCC”). This article does not describe or evaluate all provisions of Regulation CC that the Board revised or added in 2017 and 2018