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Examining Bitcoin’s Explosion, Redefining Racism, and IP Extraterritoriality


An important aspect of legal scholarship is to bring questions, concepts,  or practices that the law has not addressed to the fore, because jurisprudence doesn’t always evolve at the same pace as the world. 

Another component is to provide a workable solution or at least, steps toward one. In this issue, Professors Kristin N. Johnson, Darren Hutchinson and Timothy Holbrook each address areas where, they argue, the law has failed, is inadequate, or is outdated.

Johnson’s article says the frontier of cryptocurrency needs some guard rails to protect citizens from crashes, fraud, and outright theft. After the Wall Street bailout of 2008, fintech firms and developers began to create alternative financial products and services, but regulation and enforcement haven’t caught up, she says.

“Financial services regulation is complex and growing more complex each day,” she writes. “The innovative creation of cryptocurrency challenges established regulation, prompting reexamination of foundational questions such as what exactly (transactions, activities, or financial instrument characteristics or attributes) gives rise to regulatory intervention. Some argue regulating these ‘novel’ financial products should be a regulatory priority.”

She proposes regulators introduce formal registration obligations for cryptocurrency intermediaries, much like the Commodity Futures Trading Commission requires self-certification.

Hutchinson’s article cites the Supreme Court’s “failure to scrutinize historical racism when equal protection claimants submit evidence of statistical racial disparities caused by anti-crime policies.” Racism has mutated since the Civil Rights era, he says, and current manifestations include implicit bias, racial resentment, and social dominance orientation. Social science research has found historical and current correlation between racism and punitive sentiment, he says, which “directly counter[s] the Court’s view that racism occurs consciously and rarely and that criminal justice policies are presumptively race neutral.” Hutchinson analyzes Slave Codes and policies enacted during Reconstruction to build his argument that anti-crime policies were and are used to subordinate persons of color and protect racial hierarchy. Finally, Part III of his article, forthcoming next year, “constructs a reformed and more robust equality doctrine.”

Holbrook, whose new book on patent law will be published by Cambridge University Press next year, provides the first comprehensive examination of the Court’s recent interventions in extraterritoriality in relation to three primary areas of federal IP — patent, copyright and trademark. Earlier works have concentrated on just one.

The presumption against extraterritoriality “is long-standing in American jurisprudence,” Holbrook writes. But recently, the Supreme Court “has sought to reinvigorate the presumption and harmonize its use across all areas of law.” But lower court rulings involving all three forms of IP have been inconsistent, and he concludes that the Court’s effort to standardize the law of extraterritoriality has failed. He offers “both a descriptive account of the state and evolution of the law, as well as a normative assessment of whether the current state of the law best effectuates the policies that justify these forms of protection.”

These professors, expert and keen scholars in their fields, reflect Emory Law’s continued commitment to recruiting and retaining faculty whose work is distinguished by exceptional thought, research, and writing.