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Corporate and Business Law Journal

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In 2008, as the world dreaded economic meltdown, one or more anonymous individuals titled "Nakomoto" posted a scientific white paper on the Internet. "Bitcoin" was thus born. That name - uttered but once in the white paper- would go on to define a movement, a market, and a mountain.

By late 2010, approximately 100 bitcoin had been mined; two years later, that number approached 10 million, and a second crypto had emerged. By 2018, bitcoin traded at over $18,000 per coin; a year later, that market value had plummeted to less than $5,000. Concurrently, tales of digital asset fortunes lost or stolen have abounded. Thus, the growth of cryptocurrency, while meteoric, has been dampened by theft, volatility, and misuse.

The peer-to-peer transactional system imagined by Nakomoto could hardly be said to have welcomed regulation. And yet, with a market cap measured in the trillions, cryptocurrency is on a path to inevitable regulation. And the Securities and Exchange Commission - the most feared of market regulators - can seemingly use its expansive definition of "security" to reach almost any digital asset arrangement tied to speculation.

Accordingly, Part II of this Article provides background on the definition of "security" as introduced by the federal securities laws. Next, Part III brings a tighter lens to the cases brought by the Commission for the purpose of juxtaposing the two recent "Token" proposals offered by an SEC Commissioner. Finally, Part IV suggests amendments to the bold proposal/quasi-rulemaking. In the main, these amendments concern definitions, the suggested public disclosures, and the harmonization with salutary Commission pronouncements to date.

In sum, the unconventional Token 2.0 proposal has inspired a Congressional Bill and emboldened the industry. This article lauds the initiative while suggesting the means by which it can crystallize into permanent, efficacious regulation.

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