Over the past few years, a turf war has been brewing between the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”) over which agency should regulate cryptocurrencies. Both agencies have pursued numerous enforcement actions over the cryptocurrencies they believe to be within their jurisdiction. This turf war has many moving components, but the focus always comes back to one question: which cryptocurrencies are commodities, and which cryptocurrencies are securities? The distinction is important because the CFTC has statutory authority to regulate commodities, whereas the SEC has statutory authority to regulate securities. This Comment rejects the pursuit of defining cryptocurrency and instead proposes a regulatory framework where the two agencies regulate jointly and where the firms can self-designate and register with either the CFTC or SEC.
Taylor Anne Moffett, CFTC & SEC: The Wild West of Cryptocurrency Regulation, 57 U. Rich. L. Rev. 713 (2023).
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