Well thought out piece and really gets to reconciling the different legal frameworks for the case. Oddly, in 2018, when prospective ICO clients were coming to me with their own essentialist interpretations of the Howey Test as to why they could issue tokens in the U.S. (and were relying on me to represent that position), I would literally respond over and over again that I no longer exclusively relied on the Howey Test...that the test I put more weight on was the Duck Test and thus the functional test. So this article kind of blew me away since this was a conversation that I had multiple times in 2018. While the XRP cheerleaders make the clever essentialist argument, I don't know how Congress could allow the SEC to be castrated by forcing the essentialist argument....with that said, its not Congress here but the courts and Congress may or may not have the appetite to specifically go down this road....likely it will be left to Gary Gensler to figure out. The challenge is that the functional test continues to create a lot of grey area and Hester Pearce's safe harbor would probably go a long way to resolving.....or at least kicking the can down the road for three years!
Well thought out piece and really gets to reconciling the different legal frameworks for the case. Oddly, in 2018, when prospective ICO clients were coming to me with their own essentialist interpretations of the Howey Test as to why they could issue tokens in the U.S. (and were relying on me to represent that position), I would literally respond over and over again that I no longer exclusively relied on the Howey Test...that the test I put more weight on was the Duck Test and thus the functional test. So this article kind of blew me away since this was a conversation that I had multiple times in 2018. While the XRP cheerleaders make the clever essentialist argument, I don't know how Congress could allow the SEC to be castrated by forcing the essentialist argument....with that said, its not Congress here but the courts and Congress may or may not have the appetite to specifically go down this road....likely it will be left to Gary Gensler to figure out. The challenge is that the functional test continues to create a lot of grey area and Hester Pearce's safe harbor would probably go a long way to resolving.....or at least kicking the can down the road for three years!