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What is a Security in the Crowdfunding Era?

7 Ohio St. Entrepren. Bus. L.J. 335 (2012)

University of Tennessee Legal Studies Research Paper No. 204

38 Pages Posted: 1 Feb 2013 Last revised: 1 Jun 2014

Joan MacLeod Heminway

University of Tennessee College of Law

Date Written: 2012

Abstract

With the advent of the crowdfunding era, financial interests in business enterprises may look less like investment instruments commonly known as common stock or debentures, and more like loans, gambling bets, rights to consumable products or services or charitable or other nonprofit donations. A closer look at innovations in interests, instruments and offerings in the crowdfunding era preceding the enactment of the Jumpstart Our Business Startups Act (JOBS Act) offers a basis for comparisons and contrasts that raises questions about the categorization of instruments regulated as securities. These and other questions are important to a rethinking of the structure of financial and financially related regulation in and outside the realm of U.S. securities law.

Specifically, innovations in financial interests and instruments that immediately preceded the JOBS Act raise a number of important questions about regulatory authority and interpretation. How do we classify the instruments that represent complex or hybrid financial interests in business enterprises? What area of regulation should apply to them? Why? What do the answers to those questions tell us, if anything, about the current (and possible future) structure and function of domestic and international financial regulation? This essay preliminarily explores the features of certain financial instruments in an effort to begin to answer these questions by focusing on what a security — a statutory and regulatory category including specific financial instruments — is and should be under federal securities law.

Keywords: JOBS Act, Crowdfund Act, crowdfunding, securities, securities regulation, financial instruments, financial regulation

JEL Classification: G18, G32, G38, K22, L14, M13, P11

Suggested Citation

Heminway, Joan MacLeod, What is a Security in the Crowdfunding Era? (2012). 7 Ohio St. Entrepren. Bus. L.J. 335 (2012); University of Tennessee Legal Studies Research Paper No. 204. Available at SSRN: https://ssrn.com/abstract=2210162

Joan MacLeod Heminway (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States
865-974-3813 (Phone)
865-974-0681 (Fax)

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