Securities law professor analyzes the SEC’s crypto crackdown: Part 1

Quick Take

  • Former SEC advisor Professor J.W. Verret explains how the ‘major questions doctrine’ could put an end to SEC Chair Gensler’s regulation by enforcement.

Episode 58 of Season 5 of The Scoop was recorded with The Block's Frank Chaparro and Associate Professor of Law at George Mason Law School and former Advisory Committee Member to the U.S. Securities and Exchange Commission J.W. Verret.

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Professor J.W. Verret teaches corporate and securities law and financial accounting at George Mason Law School.

From May 2018 to March 2022, Professor Verret served as an Advisory Committee Member to the U.S. Securities and Exchange Commission where he represented the interests of investors in making recommendations to SEC Chair Gensler and other Commissioners.

In part one of this two part interview, Verret explains how a principle of administrative law in the United States known as the 'major questions doctrine' could challenge the SEC's use of the Howey Test to determine if an asset is a security under federal law.

According to Verret, the major questions doctrine is a way for the court to check the power of independent agencies:

"If Congress has not given you specific authority to regulate a thing as an agency and you're seeking to regulate it, if it involves a major question of national, economic or political importance, then you need to get authorization from Congress before you do anything."

The major questions doctrine will likely not be discussed until the SEC's lawsuits against Coinbase and Binance.US reach the appellate courts, says Verret, "but it's one of the things that looms over these cases, without a doubt."

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