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S3E11: Cryptoassets and Regulation, with Professor of Law Yuliya Guseva
21 Plays2 years ago
Professor Yuliya Guseva, Head of the Blockchain and Fintech Program, which is part of the Rutgers Center for Corporate Law and Governance, joins Interim Co-Dean Rose Cuison-Villazor to discuss her work and research in cryptoasset regulation.
Join the CCLG for its Symposium on Regulation of Cryptoassets, Wednesday, February 16, 2022. You can register at go.rutgers.edu/crypto2022.
The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers the prestige and reputation of a large, nationally-known university combined with a personal, small campus experience. Learn more by visiting law.rutgers.edu.
Production Manager: Margaret McCarthy
Series Producer: Nate Nakao
Editor: Nate Nakao
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Transcript
Introduction to the 'Power of Attorney' Podcast
00:00:10
Speaker
Hi, I'm Rose Guizan Villazor, Interven Code Dean at Rutgers Law School in Newark, and this is the Power of Attorney. I'm joined today by my colleague, Yulia Guzaffa, who is Professor of Law. Yulia, thank you so much for joining us today. Thank you for inviting me, Edin Guizan Villazor. It's a pleasure to be here.
Yulia's Background and Career Choice
00:00:31
Speaker
So we like to start this podcast by first asking the origin story. And so what that means is we want to know more a little bit about your background. So tell us, where did you grow up?
00:00:44
Speaker
Oh, I was born in the Soviet Union and that was growing up as the country was collapsing around me. And if I remember correctly at the age of 13, which was admittedly relatively early, I decided to become a law professor because I wanted to improve the market economy, the regulation of the market economy, and to teach, to work with my students.
00:01:10
Speaker
and to improve the legislative system in general. Well, I'm sorry to interrupt, but when I was 13 years old, I was thinking about Minudo, the band, thinking about different dance moves. And so I am so impressed that at age 13, you already wanted to become a law professor. Is your family
00:01:36
Speaker
in academia. What was it about being a professor? How did you get to being an age 13 wanting to become an academic?
Academic Journey and Teaching Career
00:01:47
Speaker
Well, I guess it's the whole collapse story of the Soviet Union and now Russia.
00:01:53
Speaker
which kind of affected my decision and life decisions. Well, at the age of 13, I was also thinking about various bands and dance moves as well. But to me, at that time, it was either playing the piano or doing something like becoming a law professor.
00:02:14
Speaker
so that I would have an impact on the development, as I said, of the market economy and the economy in general, the socioeconomic relationships. At the time, I thought I would stay in Russia. And yes, you are absolutely correct. My parents are professors and academics, although they are in chemistry, biochemistry, natural science, and I'm some sort of black sheep in the family in this respect.
00:02:42
Speaker
That's really interesting to hear about how background in science that your parents have ultimately still inspired you to go into academia but in a different way that's shaped by your own experience growing up in Russia at that time. Tell us about your education while you were there.
00:03:05
Speaker
So, since all schools were public at the time, I obviously went to a regular public school. I graduated at the top of my class because I wanted to pursue my goal to work in academia, to work in law, and specifically law and economics.
00:03:22
Speaker
In addition to my law degree, I also did an LLM at Columbia. Then I went on to Europe, where I received my PhD in law, which is called an SJD. I also graduated with summa cum laude. And I remember that two days, actually three.
00:03:41
Speaker
with the flight. After the defense of my dissertation, I joined Columbia Law School as a postdoctoral research fellow in the program of law and economics of capital markets. And later on, I was also awarded the Kaufman research fellow also at Columbia at the Center
00:03:59
Speaker
for contract and economic organization. After a couple of years at Columbia, I joined the faculty of Fordham Law School as a visiting assistant professor. And in 2013, I came to Rutgers and I haven't been here ever since. Yoya, when were you at Columbia?
00:04:19
Speaker
Well, first for the LLM and I graduated, once again it wasn't the best time to graduate. It was in the middle of the Great Recession in 2008 and then I rejoined Columbia in 2009 as a postdoctoral fellow.
00:04:36
Speaker
I see, we just miss each other. So I finished my LLM at Columbia in 2006. And so I suppose when I left, when you had started or just a year later, I found that Columbia in the master's program, I did mine in human rights and my mentors there prepared me quite well for not only the market, but in particular my research.
Explaining Crypto and Blockchain Technology
00:05:01
Speaker
Do you keep in touch with your colleagues at Columbia?
00:05:06
Speaker
Absolutely. And I do admire my mentors there, Professor Robert Scott, Professor Meredith Fox. Both of them are working in contracts and of course in capital markets. And this is my area of expertise as well. I'm also specializing in financial regulation, so not just in capital markets, but in broader financial regulation now.
00:05:29
Speaker
Okay. Yulia, you said that you started teaching at Rutgers Law School in 2013. Tell us the courses that you were asked to teach when you started. Well, I mainly teach everything related to capital markets and securities regulation as well as financial regulations.
00:05:48
Speaker
So the courses include securities regulation and capital markets, not surprisingly. My most recent course is financial regulation and innovation.
00:06:00
Speaker
which is about crypto and FinTech, sort of superimposed on the traditional financial regulatory system and financial regulation in general. And the third course that I usually teach is accounting and financial statement analysis that so many law students find so difficult, but nevertheless,
00:06:24
Speaker
course, so I'm teaching that as well. And back in the day when I just joined Columbia, I also taught corporate transactions for a number of years and ran the so-called transactional competition, which I modeled after the transactional competition, which is held at the Cornell Law School by Professor Jack Whitehead.
00:06:47
Speaker
You said accounting, and that's interesting because there's this joke about law school. We decide we lawyers are not good with math. We lawyers don't have the best math skills, and so that's why we're in law school. So it's funny to me to hear you say that your students find accounting difficult. That should not be surprising. And yet I know this, that many students sign up for your class, accounting and financial regulation.
00:07:13
Speaker
What I think is also fascinating about that particular course is that it's cross-listed with the business school. Quite often it is. And in terms of accounting specifically, I think that it's a very important course. A number of years ago, there was a survey conducted, I believe, by Harvard Law School. They interviewed a number of
00:07:41
Speaker
law firm partners and the majority of them, the predominant majority, suggested that accounting and corporate finance were very important courses for law graduates, law school graduates. Consequently, I think it's important to offer that to our students so that they're fully prepared for practice at big law firms or in various corporations.
00:08:04
Speaker
Tell me about the students who signed up for your class. You mentioned earlier that your classes help to prepare them for practicing in big law firms. I'd like to hear more about your sense of what your students are like.
00:08:20
Speaker
Well, the students are a very diverse group. Some of them, and since we started talking about accounting, which is difficult for many law students, some of them were English majors, others were finance majors. And the course is open to all. And I fully understand the differences in the background of the students. So consequently, I adjust the course so that it is open to all. The material is clear to all.
00:08:46
Speaker
And that is why I think the course is usually fully subscribed. Also, for securities regulation, capital markets, financial regulation,
00:08:59
Speaker
and financial innovation courses. I also have a diverse group of students. Some of them would like to work at the MPOs and focus on social justice issues of financial innovation. Others would like to join big law firms. And another group are interested in working with crypto startups.
00:09:20
Speaker
So they're very diverse, very engaged, and I think we at Rutgers are blessed to have such intelligent and highly motivated students. I definitely want to talk more about crypto assets because I find that area fascinating, but also it's a mystery to me. Explain to me in general what crypto assets are.
00:09:43
Speaker
Well, a crypto asset is usually a form of financial asset or any other asset for that matter, which is secured through cryptographic means, which is a special coding system. And crypto assets are usually transferred on blockchain, which is also referred to, often referred to as the distributed ledger technology.
00:10:06
Speaker
Meaning that it consists of blocks of transactions stacked on each other and the technology provides for an immutable record of those transactions. What does this facility? Well first the system is decentralized.
00:10:22
Speaker
which means that there is no single centralized authority running the system in most cases, which allows for better security of the system. Secondly, it is much more difficult to hack it. And finally, since it's immutable, a malicious actor cannot go back and change the history of the transactions.
00:10:45
Speaker
or not to process certain transactions to censor them, etc. These are the benefits of the blockchain technology, meaning that it is secure, provides an immutable record, and usually it is decentralized, which are all positive features of blockchain and DLT.
00:11:05
Speaker
Can you tell me, I just want to unpack that some more. Who is actually entering information into the ledger, into the blockchain? Is it a program? Is it a company, individuals who are putting all the information on this ledger? And just so I can understand exactly what makes it so secure as you explained it.
00:11:28
Speaker
So let's describe it as follows. You and I would like to transact. You have Bitcoin. I have another cryptocurrency called Ether. Or I may just have US dollars. And people would like to transact and exchange one for another. Now, we would send our transaction. And I'm oversimplifying a little bit. We would send our transaction to the blockchain
00:11:58
Speaker
organizations called miners. We shouldn't call them organizations, perhaps, because it is a group of individuals. They are not incorporated in many cases, even though they can be incorporated like they are in certain circumstances, especially in the United States. So those miners would look at our transaction, verify the information, and add the transaction to the blog.
00:12:27
Speaker
they would validate the information. And then the term is to mine that block, which would be later on added to the blockchain. So miners come from different countries. There are thousands of them if not hundreds of thousands of miners. That's for the Bitcoin blockchain. There are also other types of blockchains on which people can also transact or even build
00:12:57
Speaker
different applications atop of those blockchains. One is Ethereum, another one is Solana, and there are many others as well now. Solana and now Ethereum are moving towards already have the so-called proof of stake framework or the so-called consensus protocol. So instead of miners, they would have validators performing similar functions and making sure that transactions are correct and that
00:13:25
Speaker
added to the blockchain. So I think the question that many might ask is, why even be involved in crypto asset? What is wrong with, let's say, using regular currency, dollars, yen, as a matter of investing?
Crypto's Market Impact and Legal Challenges
00:13:41
Speaker
What is the benefit of engaging and investing in crypto assets? So we need to unpack this question and divide it in two subparts. The first one is
00:13:53
Speaker
How can we use Bitcoin, stablecoins, other cryptocurrencies, et cetera, for payment purposes? And the payment system, especially in cross-border payments, is pretty slow right now. It's old and it's outdated in some respects. Consequently, crypto can facilitate faster transactions and faster settlements.
00:14:16
Speaker
So there is that clear economic benefit right there. Obviously, there are also risks, but the benefits are also clear to many academics and practitioners. Now, the second question that you've asked was related to investments. Is crypto good for investments or
00:14:39
Speaker
show investors go with mutual funds or let's say buy shares of IBM or Alphabet, formerly Google? Well, it's a difficult question to answer. Crypto is a nascent and developing area. It's true that it has been around for more than 10 years. Nevertheless, it is still developing really fast and it's entering the mainstream finance
00:15:06
Speaker
At the moment, starting with companies such as Ripple or the Ethereum blockchain in general,
00:15:16
Speaker
various financial applications were created starting in 2015 or around that time. So once again, it is a nascent area. It is developing really fast. There are investment opportunities. There is a lot of room for speculation, of course.
00:15:37
Speaker
The value of crypto assets depends on the network effect, meaning how widely the assets are used. And it depends on the community as well as the transacting parties. Also, the second point is the actual utility and the functions that crypto assets have. And once again, this is a developing area.
00:16:01
Speaker
parties can transact much faster, and if parties can have certain voting rates, maybe we are moving towards a more conventional financial system through crypto.
00:16:16
Speaker
Thank you for that, first of all. It's helpful that you've laid it out for me in as simple terms as possible, and so I really appreciate you doing that for me. It sounds as if the way that you describe the people who are engaged in investing in crypto assets are quite sophisticated individuals with
00:16:37
Speaker
resources. I mean, they must have big computer systems that help them to mine and to validate and to enter information to a ledger. Is that accurate that the people who are engaged in this kind of crypto assets are those who are quite sophisticated investors?
00:16:55
Speaker
Well, yes and no. There are some sophisticated investors in the field, including VC, venture capital funds, which we can choose various crypto assets projects and investment projects and help them develop. At the same time, there are a lot of retail investors in the field. And this may create problems for regulators, of course, because many retail investors are unsophisticated
00:17:24
Speaker
of the crypto assets they are investing in. Let's say the UK regulator published a couple of warnings to retail investors. And so did the SEC, the Securities and Exchange Commission in the United States, publishing investor alerts regarding various crypto scams and problems related to crypto in general.
00:17:48
Speaker
However, the number of crypto holders in the United States, in the UK, and in other countries is growing.
Corporate Law Research and Blockchain Studies
00:17:57
Speaker
According to some data, about 15% of Americans now own crypto, which obviously means that many of them are retail investors.
00:18:06
Speaker
Yuyi, I thought I'd share with you the story of a friend of mine over the holidays on Instagram. He, my friend, messaged me and said, hey, I invested $500 and I got back $10,000 within three hours in this Bitcoin opportunity.
00:18:25
Speaker
If you give me $500, send it to me. I'll make you $10,000 within three hours. And I thought, OK, what is going on? My friend would never do this. And so it turns out someone hacked into his Instagram. But that just made me think about there must be many issues, criminal, civil enforcement issues related to crypto assets. Can you tell us about some of the legal issues that crypto assets raise?
00:18:53
Speaker
Well, I did not find this story surprising or even unusual because when there is money, there is opportunity for financial gain and there are fraudsters. It always happens and it's not unique to crypto or any other financial innovation for that matter. Ponzi schemes are a very well-known phenomenon and they back to the early 20th century.
00:19:20
Speaker
with Mr. Ponzi, who created the first Ponzi scheme, obviously. And there are also so-called pump and dump schemes in the crypto markets and other forms of market manipulation. The only takeaway from this, or rather the major takeaway, is that investor and consumer protection should be paramount concerns on the mind of the regulators.
00:19:49
Speaker
You're an affiliate member of the Rutgers Law Center for Corporate Law and Governance. Tell us a little bit about the work that the corporate center does. And I understand that you received a grant in order to go to provide research and teaching curricular development in financial regulation. Can you tell us a little bit more about that?
00:20:11
Speaker
So I joined the Center for Corporate Law and Governance as an affiliated faculty member. The Center was created about eight years ago, and it's a cross-campus program with two co-directors. One is Professor Doug Ikli, who's in New York.
00:20:32
Speaker
And the other co-director is Professor Leiby, who is in Camden. Also, the center has two research programs, and I run one of them. About three years ago, we started a new research program on FinTech and blockchain.
00:20:49
Speaker
And we were fortunate to receive a grant from a very well-known organization called the University Blockchain Research Initiative, which partners with various universities, including Georgetown, Carnegie Mellon,
00:21:04
Speaker
et cetera, and now they have, I can say, invested in Rutgers. We have just received a renewed grant for another two years of our program. The program consists of three different parts. The first one is research, and I'll tell you in a second about that because it's directly related to your question. The second one is the development of our curriculum, which we have already undertaken.
00:21:33
Speaker
And the third one includes community engagement and networking in this area, as well as promoting positive and efficient policy solutions. So in terms of research, I recently have published three papers on crypto and crypto from the perspective of securities regulation, commodity regulation,
00:22:00
Speaker
I also analyzed the role of the SEC, the Securities and Exchange Commission of the United States, as well as the role of the CFTC, the Commodity Futures Trading Commission. These are two very important federal agencies which deal with crypto as either securities or commodities. So in addition to those three articles, and the latest one was published
00:22:26
Speaker
a month ago, actually, in January this year. In addition to those three articles, together with Professor Ikli and the group of student researchers, and we're very proud of them, they have already graduated. Their names are Leo Chui and Katarina Gonzalez. We published another article, a joint article, which examined and compared
00:23:05
Speaker
in terms of crypto-related enforcement. And it proceeds through what I call heavy weaponry of court actions, administrative proceedings. It imposes significant fines on potential, let's say crypto fraudsters or rather alleged crypto fraudsters, as well as legitimate companies, which sometimes simply make mistakes because they do not fully understand securities law.
00:23:15
Speaker
crypto enforcement in
00:23:33
Speaker
So given that the SEC is number one in terms of the intensity of its enforcement, I decided to examine the outcomes of these enforcement efforts and looked into what happened in the United States within
00:23:50
Speaker
the crypto industry and examine the behavior of the developers slash issuers of crypto assets in the wake of such massive enforcement efforts by the SEC. And I've discovered some very troubling and concerning outcomes specifically. The mission of
00:24:14
Speaker
Any security regulator, including the United States Securities and Exchange Commission, is A, to protect investors, and B, to promote market efficiency, capital formation, etc. So unfortunately, the outcomes of such a massive enforcement program are not particularly promising and very concerning.
00:24:37
Speaker
Specifically, it looks like we're not fully protecting investors. And at the same time, we are creating a cost inefficient situation for issuers of crypto assets, either forcing them towards pre-functory compliance, which doesn't benefit investors in the end, or nudging them to leave the United States altogether, which obviously is also harmful to US investors and financial markets.
Educational Initiatives at Rutgers
00:25:03
Speaker
Now, that's for the first prong of the grant.
00:25:07
Speaker
the research part. And of course, we are still conducting significant research, and I'm currently working in collaboration with a number of professors, mostly economists, examining the market reaction to SEC enforcement. So the second part of the grant concerns curriculum development.
00:25:29
Speaker
At the moment, we have, I think, produced some significant results. For two years, I have been teaching financial regulation and innovation course. The course is designed for students who are interested in think tech, crypto, as well as the
00:25:45
Speaker
traditional conventional financial regulation because technically what is happening is that the regulators are trying to sort of superimpose or add crypto to the existing set of financial rules and regulations. So this is one of the
00:26:04
Speaker
students have access to our other initiatives. And most importantly, I also invite various guest speakers from practice in academia from the United States and European and other jurisdictions, so that our students can get exposure to various points of view. And in addition to that, I'm co authoring at the moment, a book on crypto assets.
00:26:32
Speaker
made available for law school adoption in April this year. It will be published by West Academic. I'm a co-authoring with, I think, a great professor and expert in crypto and fintech. Her name is Professor Carol Gobthardt. She's at the University of Arkansas. So that's for the curriculum development and pedagogy and
00:26:55
Speaker
promoting solid teaching methodologies in blockchain and fintech and other innovative technologies. The third prong of the grant is related to community engagement and we have organized a collaborative. This fintech and blockchain collaborative right now includes more than 50
00:27:20
Speaker
practitioners, former regulators and academics from various law firms and universities in the United States. We also have several academics from Europe who joined us and several law firm partners also from various European jurisdictions.
00:27:37
Speaker
The whole idea behind the Collaboratory is to promote free exchange of ideas, a policy exchange. We meet by monthly and usually there is a guest speaker who presents on the most cutting edge topics and then there is a free discussion. We are also organizing and
00:28:01
Speaker
Forgive me for a shameless plug. We are also organizing a symposium on crypto and fintech. The symposium will be held on the 16th of February, meaning next week. And our keynoter is the Honorable Chris Giancarlo, who was
00:28:20
Speaker
chair of the CFTC a couple of years ago. And under his leadership, the CFTC approved the first Bitcoin futures for trading on the major futures exchanges in the United States.
Machiavelli and Modern Crypto Regulation
00:28:37
Speaker
So that was a very important development. Then we will have a number of panels with distinguished panelists, including Maria Bobo, who was the superintendent of the New York Financial Services Department
00:28:50
Speaker
Another participant is Stephen Schwartz of the Duke Law School. Professor Schwartz is an expert in stablecoins and the so-called CBDCs, central bank currencies. Another panelist is Professor Kristen Johnson of Emory Law School. She has been recently nominated to join the CFTC and I hope that after
00:29:18
Speaker
the confirmation hearings in the Senate. She will join the CFTC as one of the commissioners very soon. And of course, I will present the research of the Center at that event. So to all our listeners, please sign up. We are going to have a very interesting and I think important event on the 16th.
00:29:38
Speaker
Yuya, thank you so much for that helpful explanation. And yes, listeners, please be sure to join us at our symposium on February 16th. I want us to talk a little bit more right now though, one of your recent Law Review articles that was just published in the Stanford Journal of Blockchain Law and Policy.
00:29:59
Speaker
I was fascinated with the quote from Machiavelli's The Prince that you included in the beginning of your article. And here you wrote, or he wrote, rather, in the actions of all men, and especially of princes, one judges by the result.
00:30:16
Speaker
As you noted in this piece, Machiavelli wrote that the end justifies the means. That was a really powerful way in my mind of capturing what I thought you wanted your main contribution in this paper. Please explain to us why you chose to start off your article with Machiavelli's quote. Well, I always admired Machiavelli. I think he gets this bad rep even though he was a fantastic diplomat.
00:30:44
Speaker
in Florence back in the day. I think I paraphrased this specific quote in the article to explain that, unfortunately, our regulators and specifically the Securities and Exchange Commission, while trying to achieve certain objectives, such as protecting investors and promoting market integrity, market efficiency and capital formation, the ACC hasn't managed to achieve either one of those goals.
00:31:12
Speaker
Instead, while trying to protect investors, the ACC actually didn't. And that's why the title is actually when the means undermine the ends. So the means that the ACC has been using were all related to enforcement.
00:31:31
Speaker
Some may say that it was regulation by enforcement in the crypto area, some contest this proposition, but there was a lot of enforcement and this is just a fact. And that enforcement was based on pre-crypto conventional securities regulation, which sometimes provides an imperfect fit for the vibrant and developing crypto asset markets.
00:31:57
Speaker
And through the enforcement of pre-crypto regulations, the ACC nudged a lot of crypto issues towards what I call a perfunctory compliance option.
00:32:10
Speaker
which doesn't provide investors with sufficient information about the crypto securities. The most vulnerable investors who rely on issues to provide them with so-called issue disclosure, those investors do not receive appropriate disclosures because once again the SEC nudged the issues towards private placements.
00:32:32
Speaker
where in most cases there is no standardized disclosure. Now, at the same time, the ACC did not take into account that the sophisticated investors do not fully rely on the pre-crypto conventional disclosures.
Advice for Aspiring Financial Regulators
00:32:48
Speaker
Crypto operates slightly differently. The code is open source, it is public, and the code is the main asset of those young crypto firms. Consequently, the traditional financial statements and balance sheets and other disclosure points are not very relevant, provided an investor can
00:33:12
Speaker
sophisticated definitely can. So we have two categories of investors where one is left with almost no issuer disclosure because the SEC has nudged issuers as I suggest in the paper towards the least costly compliance option of private placements. And the second category simply do not need the full scope of the SEC disclosure. And yet the SEC continues to enforce pre-crypto securities regulation claiming that they do that
00:33:42
Speaker
in order to protect investors and provide investors with material information. So I believe that this is not the outcome that the ACC intended, and this is an inefficient outcome. Consequently, the means actually undermine the ends.
00:33:57
Speaker
in the context of crypto enforcement. And I hope that the Commission, and they deeply respect our Securities and Exchange Commission, I hope it will realize that sometimes enforcement efforts go sideways and focus on rulemaking and more clear guidelines in this area.
00:34:18
Speaker
Thank you. That was really helpful. I appreciated learning about your research, about the classes that you teach. As we wrap up this podcast interview, I was wondering if you can give some advice to our students who are interested in this area. Your classes are all upper level classes.
00:34:40
Speaker
Some of our, many of our students might not have accounting background, but say that they want to be interested, they are interested in this area. What might be, what would be your advice to them if this is the area that they want to practice in? My feeling is that a lot of our students, when they join law firms, nonprofit organizations or various government agencies,
00:35:04
Speaker
They bring with them not only the knowledge that they receive in our law school, but also the spirit of Rutgers and their values. So I believe that it is important for our students to take upper level courses and to specialize
00:35:19
Speaker
to never be intimidated by complex terminology or unusual terminology because I've seen many of our students succeed in these fields and become great lawyers of corporate law, securities law, and financial regulation.
00:35:37
Speaker
What I really appreciate, Yoya, is that Rutgers has a strong program in corporate law and governance. We have this center that provides a space for students who are interested in this area to meet our alumni who are involved in crypto assets and financial regulation. They end up hearing speakers from outside the law school, government regulators, those nonprofit organizations. And then they get to work with you and Doug and Arthur and other of our colleagues.
00:36:06
Speaker
engaging in this innovative, hot topic research areas. And so Rutgers has provided a space for those students who are interested in Bitcoin and other forms of crypto assets.
Conclusion and Farewell
00:36:21
Speaker
So thank you for being among the top of the field in innovating in this area of research so that we can share it with the general public. Thank you so much, Eros, for
00:36:36
Speaker
It's a great opportunity to share the news about our center and the payment program with you listeners. Yoya, thank you again for making time this morning. I learned so much from you and I know that our listeners learned a lot as well and just wonderful job overall with your teaching and your research and your writing. Thank you so much Rose.
00:36:58
Speaker
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