> It's a good question for philosophers and spectators, but personally I don't care at all
Please don't be so narrow sighted. Have you ever been charged with a crime you didn't know was a crime? You don't think overzealous sheriffs or prosecutors love pulling out old statutes on people?
Holding people accountable for laws they had no reasonable way of knowing is a miscarriage of justice. Our criminal system absolutely takes intent into account when determining criminality and sentencing.
I have no idea why people think the Howey test is so cut and dry when courts sometimes struggle with a legal definition for a sandwich.
"Ignorance of the law is not an excuse" is a well-established legal principle with precedent going back to Ancient Rome. It does get a bit tricky when regulatory statutes get involved, but c'mon: all these businesses save maybe Coinbase are run by criminals. We're not talking about well-meaning people acting in good faith here.
Also, that all only applies to criminal statues, not civil/regulatory ones. If you're a construction firm who doesn't know that houses have to be built to fire code, maybe you'll escape criminal prosecution, but the government is going to take an axe to your business anyway.
Mashinsky definitely has a "reasonable way of knowing" about these laws. More than that, anybody starting a company has a positive duty to clients and investors to make sure that it's legal before things get too far.
Maybe a better example would be the pot industry. Pot is blatantly illegal at the federal level. So everyone currently running a dispensary is theoretically operating fraudulently with their business partners.
Does that mean they have a duty to their own business partners or customers or investors to shut down their own business?
They are not operating fraudulently. Their customers are buying and getting marijuana. Their investors surely know the risks as well.
If we're looking for an analogy in this space, I think it's more like snake oil. So imagine a company started selling a new "nutritional supplement" or "herbal blend" that helped with anxiety. But it turned out the secret ingredient was weed. That would be a fraud on investors and they could well get charged for that on top of the base drug charges.
I think people running billion dollar companies with the ability to access effectively unlimited lawyers in an industry with constant news coverage in major papers about how it is dubiously legal while writing to the agency in charge don't get to use the "how was I supposed to know about an obscure law from 1841" excuse.
Courts never struggled with the legal definition of a sandwich. But yes, they had to come to a decision on what counted for legal reasons.
Please don't be so narrow sighted. Have you ever been charged with a crime you didn't know was a crime? You don't think overzealous sheriffs or prosecutors love pulling out old statutes on people?
Holding people accountable for laws they had no reasonable way of knowing is a miscarriage of justice. Our criminal system absolutely takes intent into account when determining criminality and sentencing.
I have no idea why people think the Howey test is so cut and dry when courts sometimes struggle with a legal definition for a sandwich.